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."

19

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

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

12 Ala., 359; Woolenslagle v8. 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.

SECTION 95. WITNESS SPEAKING FOREIGN LANGUAGE.

Where the witness speaks and understands only a foreign language, the better practice is to procure a competent interpreter, have him sworn to accurately and truly translate the interrogatories from English into the foreign language, and the answers thereto from the foreign tongue into English, in which language they are to be taken down. But answers written down in the foreign tongue have been received and translated by an interpreter at the time of trial.20

In Christman vs. Ray, 42 Ill. App., 111, it appears that, in a deposition taken before a notary public in Switzerland, the interrogatories and cross-interrogatories, put to the several witnesses, and their answers to the same, appeared in said deposition in the French language. The objection made to the deposition at the time it was offered, on account of the use of French so far as it was employed in the deposition, was based upon Section 18 of the constitution, which is as follows:

"All laws of the State of Illinois, and all official writings, and the executive, legislative and judicial procedings, shall be conducted, preserved and published in no other than the English language."

The objection was overruled and translation thereof was made to the jury. The method pursued in taking the deposition was this: The commission with the direct and cross-interrogatories was sent to the commissioner; each direct and cross-interrogatory was translated into the French language and written down in that language as put to the witness, and his Reichmann, 9 N. Y. App. Div., 596.

20 Christman vs. Ray, 42 Ill. App., 111; Canvasos vs. Gonzales, 33 Tex., 133; U. Sq. Bank vs.

answer to each was written in his own words as spoken in his own language, which was French, and the deposition was then read to the witness and he signed and swore to it, and the whole was certified to and returned by the commissioner. The contention was, that the taking and returning of the deposition in this way was conducting a judicial proceeding in other than the English language, as prohibited by the constitution, and was therefore unlawful. Judicial proceedings, in the broadest sense, embrace all proceedings in a court of justice, or which relate to or proceed from such a court, but such proceedings are not all preserved or published. All that is preserved is the record history of a cause, and the provision concerning the language to be used in preservation and publication must refer to the records of the courts. The taking of the deposition was a method of making evidence, material to the determination of the rights of the parties, but which was beyond the jurisdiction, available in the cause. The commissioner in Switzerland acted by virtue of our laws and was bound to act in conformity with them. He had the same liberty in respect to foreign language, as a court here would have, and no more. If no part of his proceeding could be had in a foreign language, the same construction of the prohibition would exclude from the courts all evidence, oral and written, that must be adduced, in the first instance, in a foreign language. It is impossible to take the testimony of a witness who does not understand English, either in court or by deposition, without some portion of the proceeding being conducted in other than the English language. The evidence as it comes from the mouth of the witness is not English in such cases. By such construction,

documentary evidence would be entirely excluded unless in English. If a contract or other document be in a foreign language, still that and that only is the instrument of evidence, and it must be produced, proven and offered in evidence. Its meaning must be given to the jury by translation into English, but the fact remains that the evidence itself is in another language.

The Court says: "We are to seek in the language used in the constitution for the thought which the people intended to express by a consideration of the whole instrument in the light of the common law, and keeping in mind that the constitution was not the beginning of the law for the State, but that there was an existing system of laws which it recognizes, to be continued and enforced, subject to its limitations. The constitution, by such provisions as that the right of trial by jury should remain inviolate, and that the privilege of habeas corpus should not be suspended, assumes the existence of a system of laws. By its declaration that all persons should find in the laws a certain remedy for every injury and wrong, it shows a plain intent that every avenue to justice should be open. A construction so narrow and arbitrary as to cut off important methods of obtaining justice and to defeat the general intent of the instrument, should not be adopted. It would itself be at variance with the spirit of the instrument itself. In the furtherance of justice, evidence in foreign language must be used. To interpret the constitution so as to prevent it, would be to make it an instrument of oppression and injustice. Evidence, which must be presented in other than the English language, may be the only means of obtaining justice. The same provision as that under considera