cific statement of the facts which he expected to prove by them; in equity, on the other hand, except in a few rare instances, facts, not evidence, are required to be pleaded. So, originally, each party was before publication very much in the dark as to the facts which his antagonist intended to attempt to establish. "It is not surprising, therefore, that the mode of taking testimony in equity fell into disrepute, and finally broke down." 2 Testimony in equity is now, therefore, almost universally allowed to be taken orally in the presence of counsel. The rules regulating the practice of the courts of the United States upon the subject are as follows: "Either party may give notice to the other that he desires the evidence to be adduced in the cause to be taken orally, and thereupon all the witnesses to be examined shall be examined before one of the examiners of the court, or before an examiner to be specially appointed by the court, the examiner to be furnished with a copy of the bill and answer, if any; and such examination shall take place in the presence of the parties or their agents, by their counsel or solicitors, and the witnesses shall be subject to cross-examination and re-examination, and which shall be conducted as near as may be in the mode now used in the common-law courts. The depositions taken upon such oral examinations shall be taken down in writing by the examiner in the form of a narrative unless he determines the examination shall be by question and answer in special instances; in which instances it shall be taken down by a stenographer and be put into typewriting or other writing, and, when completed, shall be read over to the witness and signed by him in the presence of the parties or counsel, or such of them as may attend; provided, if the witness shall refuse to sign the said deposition, then the examiner shall sign the same; and the examiner may, upon all examinations, state any special matter to the court as he shall see fit; and any question or questions which may be objected to shall be noted by the examiner upon the deposition, but he shall not have power to decide on the competency, materiality, or relevancy of the questions; and the court shall have power to deal with the costs of incompetent, immaterial, or irrelevant depositions, or parts of them, as may be just." "The expense of the taking down of depositions by a stenographer and of putting 2 Langdell's Eq. Pl., § 56. See also Langdell's Eq. Pl., SS 14-19. them into typewriting or other writing, shall be paid in the first instance by the party who makes the examination or the cross-examination, as the case may be, and shall be imposed by the court, as part of the costs, upon such party as the court shall adjudge shall ultimately bear them." "In case of refusal of witnesses to attend, to be sworn, or to answer any question put by the examiner, or by counsel or solicitor, the same practice shall be adopted as is now practiced with respect to witnesses to be produced on examination before an examiner of said court on written interrogatories. Notice shall be given by the respective counsel or solicitors, to the opposite counsel or solicitors, or parties, of the time and place of the examination, for such reasonable time as the examiner may fix by order in each cause. When the examination of witnesses before the examiner is concluded, the original deposition, authenticated by the signature of the examiner, shall be transmitted by him to the clerk of the court, to be there filed of record, in the same mode as prescribed in the thirtieth section of Act of Congress, September 24, 1789.3 Testimony may be taken on commission in the usual way, by written interrogatories and cross-interrogatories, or motion to the court in term time, or to a judge in vacation, for special reasons satisfactory to the court or judge." examiner must note all objec 287. The U. S. R. S., § 865. See infra, SS 286, Amendment of 1861 to Rule 67. In the Circuit Court of the United States for the Southern District of New York, the following rules regulate the subject: "If a general commission is not issued, pursuant to the 25th Rule of the Supreme Court, within ten days after replication filed, either party may give notice of the examination of witnesses before the standing examiner of this Court; and three months from the time of the replication shall be allowed the parties for taking their depositions before the examiner." (Rule 108.) "In taking testimony, all Masters, Examiners, Referees, and Commissioners shall, where testimony is written down by question and answer, number the questions put to each witness continuously, from the commencement of his direct examination to the final close of his examination, direct and cross." (Rule of November 10, 1868.) "Whenever it is intended to offer oral proof in open court, the party proposing it shall give due notice to the opposite party of the names of the witnesses, the matters to which they are to be examined, and of the reasons upon which he will move for an examination." (Rule 110.) "A master or examiner, in taking proofs, or in matters of reference, shall not, without the written consent of all parties, or the authorization of one of the judges, adjourn proceedings pending before him, for a longer time than ten days." (Rule 115.) "No rule or tions and exceptions to questions and answers, and take the testimony subject to them, but cannot decide on their validity." It has been held that the court will not interfere to prevent irrelevant questions. Irrelevant evidence may be stricken out, and the costs of taking the same imposed upon the party who took it. Upon due notice given as prescribed by previous order, the court may, in its discretion, permit the whole or any specific part of the evidence to be adduced orally in open court on final hearing. The act of March 9, 1892, provides that in order need be entered for the publication of testimony; but so soon as the commissioner or examiner shall have completed the testimony of fered, the party taking it shall cause the deposition to be filed in the clerk's office, and forthwith give notice thereof to the adverse party. Either party may thereupon enter a rule of course, that the clerk open the commission, or deposition, and file the same." (Rule 112.) "Within four days after the clerk shall have prepared copies of the depositions (provided the same were applied for in two days after the notice of the filing thereof), the adverse party may give notice of exception, before a judge at chambers, to the proofs or any part of them, on account of any irregularity in taking the depositions, or executing the commissions; and, if no such notice of exception is given, all objections to the form or manner in which the proofs were taken shall be deemed waived." (Rule 113.) "Whenever it is intended to offer oral proof in open court, the party proposing it shall give due notice to the opposite party of the names of the witnesses, the matters to which they are to be examined, and of the reasons upon which he will move for an examination." (Rule 110.) Appleton v. Ecaubert, 45 Fed. R. 281. The action of an examiner in adjourning the hearing after a witness is tendered for cross-examina tion is final, and if the party who offered the witness refuses to produce him for cross-examination his testimony in chief will be suppressed. Shapleigh v. Chester El. L. & P. Co., 47 Fed. R. 848. The court may, after a deposition has been concluded, allow further cross-examination. La Normandie (C. C. A.), 58 Fed. R. 427; s. c., 40 Fed. R. 590. For a case where a deposition was admitted when the witness had died before his cross-examination, which had been adjourned at the request of the cross-examiner, see Celluloid Mfg. Co. v. Arlington Mfg. Co., 47 Fed. R. 4. For a case where a deposition was taken by consent in the absence of the examiner, and a dispute arose, see Ballard v. McCluskey, 52 Fed. R. 677. It has been held that when the parties stipulate that testimony may be taken before any officer or magistrate qualified to administer oaths without special appointment by the court as an examiner, the deposition thus taken must be filed on record, as required by Equity Rule 67, in cases where an examiner is regularly appointed; and the party in whose behalf the testimony was taken has no right to suppress it. T. L. Mott Iron Works v. Standard Mfg. Co. (C. C.), 48 Fed. R. 345. 6 Blease v. Garlington, 92 U. S. 1, 4-8; Lloyd v. Pennie, 50 Fed. R. 4, 11; supra, § 267. 7 Griffith v. Shaw, 89 Fed. R. 313. addition to the mode of taking the depositions of witnesses in cases pending at law or equity in the District and Circuit Courts of the United States, it shall be lawful to take the depositions of witnesses in the mode prescribed by the laws of the State in which the courts are held. It has been said that this merely provides an additional method of taking testimony, and does not confer any additional rights, such as an examination of a party to an action at law before trial,1o or before issue joined." 1 § 285. Testimony taken after a cause is at issue and beyond the jurisdiction of the court.- It often happens that a witness, whose testimony is needed by either party to a suit in equity, is beyond the jurisdiction of the court. In such a case, his testimony can be taken in six ways,- by deposition, according to the acts of Congress; by a commission under a dedimus potestatem; and by letters rogatory, in the method prescribed by the laws of the State where the court is held;" and by a special master or examiner," or master appointed by the court where the suit is pending to take testimony in another district, or even in a foreign country." 2 $286. Depositions de bene esse under the acts of Congress. The equity rules say that "testimony may also be taken in the cause, after it is at issue, by deposition, according to the acts of Congress. But in such case, if no notice is given to the adverse party of the time and place of taking the deposition, he shall, upon motion and affidavit of the fact, be entitled to a Equity Rule 67, 149 U. S. 793; Mears 927 St. at L. 17. 10 Nat. Cash Reg. Co. v. Leland (C. C. A.), 94 Fed. R. 502; s. c., 77 Fed. R. 242. 11 Shellebarger v. Oliver, 64 Fed. R. 306; Texas & Pac. Ry. Co. v. Wilder (C. C. A.), 92 Fed. R. 953; Despeaux v. Pennsylvania R. Co., 81 Fed. R. 897. § 285. Infra, §§ 286, 287. 2 Infra, §§ 288, 289. 427 St. at L. 17; supra, § 284, notes 10, 11. 5 White v. Toledo R. Co. (C. C. A.), 79 Fed. R. 133; North Carolina R. Co. v. Drew, 3 Woods, 691; In re Steward, 29 Fed. R. 813; Johnson Steel Street Rail Co. v. North Branch Steel Co., 48 Fed. R. 191; In re Allis, 44 Fed. R. 217; In re Spofford, 62 Fed. R. 443. But see Arnold v. Chesebrough, 35 Fed. R. 16, and Celluloid Mfg. Co. v. Russell, 35 Fed. R. 17. 6 Consolidated Fastener Co. v. Columbian B. & T. Co., 85 Fed. R. 54. 7 Bate Refrigerating Co. v. Gillette, 28 Fed. R. 673. 1 cross-examination of the witness either under a commission or by a new deposition taken under the act of Congress, if a court or judge thereof shall, under all the circumstances, deem it reasonable." The acts of Congress on the subject apply to cases at common law and in equity.? They are as follows: "The testimony of any witness may be taken in any civil cause depending in a District or Circuit Court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. The deposition may be taken before any judge of any court of the United States, or any commissioner of a Circuit Court, or any clerk of a District or Circuit Court, or any chancellor, justice, or judge of a Supreme or Superior Court, mayor or chief magistrate of a city, judge of a County Court or Court of Common Pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness, and the time and place of the taking of his deposition; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in; and whenever, by reason of the absence from the district and want of an attorney of record or other reason, the giving of the notice therein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and direct. Any person may be compelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court." 286. 1 Equity Rule 68. See Stegner v. Blake, 36 Fed. R. 183. 3 "Every person 3 U. S. R. S., § 863. It has been held that the deposition may be taken be 2 Stegner v. Blake, 36 Fed. R. 183; fore a judge of probate if his court U. S. R. S., § 863. is a court of record, Merrill v. Daw |