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 commission.' 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 7 Toledo, etc., R. Co. vs. Brad- 6 9 'Everingham vs. Lord, 19 Ill. Aultman & Taylor Mfg. Co. vs. Clough vs. Kyne, 40 Ill. App., 234. Thorp vs. Goeway, 85 Ill., 611. McCoy vs. People, 71 Ill., 111; • See In re Noble's Will, 124 Ill., 266; 164 Ill., 391; Hughes vs. Humphreys, 102 Ill. App., 194. 10 Kendall vs. Limberg, 69 Ill., 355. 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,12 supported by proof of that fact; where the depositions were mailed to the attor13 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.14 neys 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, "King vs. Dale, 1 Scam. (Ill.), 518. Heilprin, 95 Ill. App., 402; Edelman vs. Gilmore, 75 Ill., 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. 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.10 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."7 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. 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.18 SECTION 92. AT WHAT STAGE DEPOSITIONS MAY BE After the trial of an action has been commenced, depositions cannot ordinarily be taken, and especially 18 Glenn vs. Hunt, 120 Mo., 330. * |