were taken, or under the great seal of the State, showing the official character of the officer taking the depositions; failure to give sufficient notice of the taking of the depositions, as required by statute; where the depositions show that they have been tampered with; where it appears that the answers to the interrogatories were dictated or written out by an attorney in the cause," supported by proof of that fact; where the depositions were mailed to the attorneys 13 in the cause, and kept by them until the time of trial, instead of being returned to the clerk of the court out of which the dedimus issued; failure of the certificate to show that the person, before whom the witnesses were sworn, was duly authorized by law to administer oaths in the place where the depositions were taken; and, where required by statute, failure of the officer to endorse on the deposition the names of the parties to the suit."

SECTION 88. EFFECT OF WITNESS BEING PRESENT AT TRIAL.

It is no objection to the reading in evidence of a deposition that the witness whose deposition was taken is within the jurisdiction of the court, or that he is in the court-room, at the time of trial. Nor will the opposing side be permitted to put such witness on the stand and cross-examine him as to the matters testified to in his direct examination when the deposition was taken. The opponent had the opportunity of crossexamining the witness then, and he cannot be per

"Everingham vs. Lord, 19 Ill.

App., 565; Scott vs. Bassett,
186 Ill., 98; Whaler vs. Shields,
2 Scam. (Ill.), 348.

12 King vs. Dale, 1 Scam. (Ill.), 518.
13 Louisville N. A. & C. R. Co. vs.
Heilprin, 95 Ill. App., 402;

Edelman vs. Gilmore, 75 Il., 367.

14 Indiana & Ill. Southern Ry. Co. vs. Wilson, 77 Ill. App., 603, citing Forsyth vs. Baxter, 2 Scam. (Ill.), 9.

mitted to do so now. He may, however, call him as his own witness, and may examine him generally, as well as touching the matters to which he testified in his deposition.15

SECTION 89.

POWER OF OFFICER TO COMPEL ATTENDANCE OF WITNESSES AND PRODUCTION OF

BOOKS AND PAPERS.

16

Unless such power is expressly or by necessary implication conferred by statute, an officer or commissioner appointed by the courts of another state is powerless to compel the attendance before him of witnesses, or the production of books or papers." Where the legislature has conferred such power by statute on a court, or an officer, or the commissioner or other officer before whom the deposition is to be taken, the attendance, testimony, and the production of books and papers, by the witness, may be compelled by court order, subpoena, subpoena duces tecum, summons, or other process, as prescribed by statute, in the same manner as in the trial of a cause before the courts of the state in which the deposition is being taken; and the witness may be attached for contempt of court, in case he refuses to obey such order, subpoena, summons, or other process.17

SECTION 90. FILING THE INTERROGATORIES.

If a certain time is prescribed by statute in which to file interrogatories, the provisions of the statute must be strictly followed; if no definite time is fixed, then they should be filed within such reasonable time

15 Frink vs. Potter, 19 Ill., 406.
16 Kotz vs. Eilenberger, 9 Pa. Co.

Ct., 340; Cappeau vs. Middleton, 1 Harr. & G. (Md.), 154. 17 Com. vs. Smith, 11 Allen (Mass.),

243; Matter of U. S. Pipe Line Co., 16 N. Y. App. Div., 188; Henning vs. Boyle, 112 Fed., 397; In re Edison, 68 N. J. L., 494.

before the issuance of the commission as will afford the opponent a reasonable opportunity to file his specific objections, or to prepare cross-interrogatories, or both. The usual rule is for both interrogatories and cross-interrogatories to be filed before the issuance of the dedimus potestatum.

SECTION 91. SETTLING THE INTERROGATORIES.

Where there is a dispute between the parties as to the propriety and materiality of the interrogatories, or any of them, and they are unable to reach an agreement concerning the same, the usual practice is for the dissatisfied party to make specific objection to such interrogatories as he deems improper, and to give due notice to his opponent that, at a specified time and place, he will appear before the court and have the materiality and propriety of such interrogatories passed upon and settled by the court. The determination of this question by the court is called "settling the interrogatories." The precise ground of the objection to each interrogatory should be specified, so as to give the propounder an opportunity to amend before the commission issues.

The authorities seem to be hopelessly in conflict on the question as to whether both oral and written interrogatories may be used in the same deposition.

The interrogatories should be attached to the commission, although it has been held that the failure to do so is not fatal."

SECTION 92. AT WHAT STAGE DEPOSITIONS MAY BE ΤΑΚΕΝ.

After the trial of an action has been commenced, depositions cannot ordinarily be taken, and especially 18 Glenn vs. Hunt, 120 Mo., 330.

not after the argument has been closed, except by leave of court specially obtained, for good cause shown. Courts have, however, exercised their discretion and allowed depositions to be taken after the close of plaintiff's case, where warranted by special circumstances. They have been allowed where the defendant omitted to plead and after a decree pro confesso had been entered against him. After a final determination of the action, depositions cannot be taken.

SECTION 93. FORMER DEPOSITIONS.

The question, whether the deposition of a witness, taken in a former proceeding between the same parties, is admissible in evidence, frequently engages the attention of courts and counsel. The rule is, that a deposition taken in a former suit between the same parties, involving the same question, or subjectmatter, are admissible when the question again arises for judicial determination. And it is not absolutely essential that the parties be identical, or that there be complete mutuality in respect to their relation to each other, or to the subject-matter. It is sufficient, if the same matter were in issue in both cases, and those against whom the deposition is offered, or those under whom they claim the estate or right in question, have the opportunity of cross-examining the witness and of testing the truth of his testimony."

And where a deposition has been properly taken in an action, unless something has since transpired to render such deposition inadmissible, it may be received during all the subsequent proceedings or

19 Wade vs. King, 19 Ill., 300; McConnell vs. Smith, 27 Ill., 234 Holman vs. Norfolk Bank,

12 Ala., 359; Woolenslagle vs. Runals, 76 Mich., 545.

stages of such action, upon new trial thereof, upon appeal, or after amendment of pleadings.

If the party against whom the deposition is offered was not a party, nor in privity with a party, to the former suit or proceeding, the deposition is admissible only in so far as to establish the pendency of the suit in which such deposition was used.

In order for a deposition to be admissible, it should appear: (1) That the parties are the same, or in privity; (2) the question to be judicially determined is the same; (3) that the evidence in the one case would tend to support the issues in the other.

SECTION 94. WHO MAY OFFER DEPOSITION.

A party taking a deposition is not obliged to offer the same in evidence. Where properly taken and filed, he may, at his option, offer the whole, or any part, of the deposition in evidence, or he may reject it all. His adversary may then, if he choose, offer in evidence such parts of the deposition not offered by the party taking the deposition as he deems advisable, or he may offer the whole deposition, if it is entirely rejected by the party at whose instance it was taken.

There are decisions in a few jurisdictions to the effect that all or none of the deposition must be introduced, but this view is contrary to the great weight of authority in the United States.

It has been held that a deposition, even though not complying with all the statutory formalities, taken in another action between different parties, and ordinarily inadmissible, may be used to contradict the testimony of a witness, or as an admission against interest if he is a party to the suit in which offered.