stand the English language, the commissioner, virtute officii, may appoint an interpreter, who should be sworn truly to interpret between the commissioner and the witness; and the answers of the witness are to be taken down in English, through the interpreter.2

§ 325. Testimony may also be taken in perpetuam rei memoriam, by a commission, issued pursuant to a bill filed for that purpose; which every Court, having general jurisdiction in Equity, has inherent power to sustain.3 The commission is executed as in other cases. But as this subject is regulated by statutes in most of the United States, and the mode of taking depositions has been stated in a preceding volume,

party, a copy of the interrogatories is added; but the party who filed the interrogatories does not take a copy of them. Each copy is signed by the Examiner, to authenticate it; and upon its being taken away, the fees due to the office are paid. Every document or exhibit, referred to in the depositions, is also signed by the Examiner, before it is returned to the party producing it." See Gresley, Eq. Evid. p. 63-72. And see 1 Hoffm. Ch. Pr. 462-464.

1 Amory v. Fellows, 5 Mass. 225, 226; Gilpins v. Consequa, 1 Pet. C. C. R. 88. But Ld. Nottingham established a rule, that no alien should be examined as a witness, without a motion first made in Court to swear an interpreter, so that the other side may know him and take their exceptions to him. 2 Swanst. 261, n. When a commission is sent abroad, it is usual to insert a special direction to employ an interpreter, if necessary. Ld. Belmore v. Anderson, 4 Bro. Ch. C. 90. But this is superfluous; especially if they are authorized, in general terms, to examine such, or such other, witnesses, as may come before them; for the interpreter is a witness. 5 Mass.

226.

2 Ld. Belmore v. Anderson, 4 Bro. Ch. C. 90; 2 Cox, 88, S. C.; 2 Dan. Ch. Pr. 1063, 1088; Gresley, Eq. Evid. 119. Smith v. Kirkpatrick, 1 Dick. 103. At law, a deposition, taken abroad, is admissible, though it be written, signed, and sworn in a foreign language, and some weeks afterwards translated and certified under oath by the interpreter; the translation being annexed to and returned as part of the return to the commission. Atkins v. Palmer, 4 B. & Ald. 377. No good reason is perceived why it should not be equally admissible in Equity.

3 See Story, Eq. Pl. § 300 – 306; Ante, Vol. 1, § 324, 325.

4 See ante, Vol. 1, § 320 – 325. See, also, Gresley Eq. Evid. 129-135; 3 Monthly Law Reporter, 256.

with as much particularity as the nature of this treatise will permit, it will not, in this place, be farther pursued.

§ 326. In regard to the admissibility of depositions in Equity, it is held, that where depositions, not legally entitled to be read, are admitted by consent of parties, this consent is co-extensive with the cause, and under it the depositions may be read at every future hearing of the same cause, whether it be in the higher Court, on appeal, or in the same Court, after the decree has been reversed in the appellate Court, and the cause remanded for farther proceedings.1 And depositions, read at the hearing, are also admissible in evidence on the trial of an issue out of Chancery.2 If they have once been read without objection, in the Court below, this is evidence of consent, entitling them to be read in the higher Court, on appeal. The deposition of the party himself, in a bill of revivor, taken before the death of the original complainant, and while the deponent had no interest in the suit, is evidence for him at the final hearing. So, if the deposition of the plaintiff is taken under an order obtained by the defendant, it is admissible in evidence for the plaintiff, though it goes to support his case. But if the deponent becomes interested in the subject of the controversy during the period between the beginning and the end of his examination, that portion of his testimony which was given before his interest commenced, may, in the discretion of the Court, be received, if it be complete and distinct as to the matters of which he speaks; and every part of his answers, as to matters to which his interest does not relate, will be received. But no depo

1 Vattier v. Hinde, 7 Pet. 152; Hinde v. Vattier, 1 McLean, 110.

2 Austin v. Winston, 1 Hen. & Munf. 33.

3 Johnson v. Rankin, 3 Bibb, 86; Gibbs v. Cook, 4 Bibb, 535.

4 Hitchcock v. Skinner, 1 Hoffm. Ch. R. 21; Brown v. Greenley, 2 Dick. 504.

5 Lewis v. Brooks, 6 Yerg. 167.

6 O'Callaghan v. Murphy, 2 Sch. & Lefr. 158; Fream v. Dickinson, 3 Edw. Ch. R. 300; 2 Dan. Ch. Pr. 1064. And see ante, Vol. 1, § 168 ;

sition will be admitted to be read, against a party brought in after it was taken, or too late to exercise the right of crossexamination.1 Depositions taken in another suit, between the same parties or their privies in estate, may also be read at the hearing, after an order obtained for that purpose.2

§ 327. The rules and principles, by which the examination of witnesses is conducted in Equity, are in general the same which have been stated in a preceding volume as applied in Courts of Law; and therefore require no farther notice in this place.3

5. INSPECTION IN AID OF PROOF.

§ 328. Trial by inspection, or personal examination of the subject of controversy, by the Judge, was anciently familiar in the Courts of Common Law; and though, as a formal and distinct mode of trial, it has fallen into disuse, yet as a matter of proof, ancillary to other testimony, parties are still permitted, in all our tribunals, to exhibit to the Court and Jury, persons, models, and things not cumbrous, whenever the inspection of them may tend to the discovery of the truth of the matter in controversy. In Courts of Law, however, this is only permitted, or, at farthest, sometimes suggested by the Judge; it being seldom, if ever, ordered; but in Courts of Equity, the Judge will often order the production of such subjects before him, for his own better satisfaction as to the

Gresley, Eq. Evid. 366, 367; Haws v. Hand, 2 Atk. 615; Gosse v. Tracy, 2 Vern. 699; 1 P. Wms. 287, S. C.; Cope v. Parry, 2 Jac. & Walk. 538, 1 Jones v. Williams, 1 Wash. 230; Clary v. Grimes, 12 G. & J. 31; Jenkins v. Bisbee, 1 Edw. Ch. R. 377. And see ante, Vol. 1, § 426, 554; Pretty v. Parker, 1 Cooper, 38, n.

2 2 Dan. Ch. Pr. 1011–1016; Brooks v. Cannon, 2 A. K. Marsh. 525; Ante, Vol. 1, § 523, 525, 552, 553.

3 See ante, Vol. 1, § 431-469. See, also, 2 Dan. Ch. Pr. 1045-1051. 4 3 Bl. Comm. 331; 9 Co. 30.

truth. Thus he will order an infant to be produced in Court, for satisfactory proof of his existence, age, and discretion; or an original document, or book, to be satisfied of its genuineness and integrity, or its age and precise state and character; or the like.1 And where the subject is immovable, the Court will order the party in possession to permit an inspection by witnesses.2

§ 329. But it is in bills of injunction, to restrain the violation of patent-rights and copy-rights, that this power of a Court of Equity is most frequently called into exercise. In the case of patents, nothing is more familiarly seen than the machine or instrument itself, or an accurate working model, under inspection at the hearing. But in these cases it is not unusual, and in those of copy-rights it is almost the invariable course to refer it to a master or other competent person, who for this purpose represents the Court, to compare critically the machine, map, book, work of art, or invention, claimed as original, with that which is alleged to be piratical and spurious, and to report their opinion to the Court;3 though in cases easily capable of decision upon a brief inspection, without too great a demand upon the time of the Judge, he will examine and decide for himself.4

6. FURTHER INFORMATION REQUIRED BY THE COURT.

§ 330. The right of the Judge to require further proof upon any point under his consideration, without the motion and

1 Gresley, Eq. Evid. 451 – 454; Comstock v. Apthorpe, 8 Cowen, 386; 1 Hopk. Ch. R. 143, S. C. And see Louisiana, Code of Practice, Art. 139. 2 Kynaston v. E. Ind. Co. 3 Swanst. 249.

3 Gyles v. Wilcox, 2 Atk. 141; Carnan v. Bowles, 2 Bro. Ch. C. 80; Leadbetter's case, 4 Ves. 681; Mawman v. Tegg, 2 Russ. 385; Gray v. Russell, 1 Story, R. 11; 2 Story, Eq. Jur. § 941.

4 Butterworth v. Robinson, 5 Ves. 709; Sheriff v. Coates, 1 Russ. & My. 159; Ex parte Fox, 1 V. & B. 67.

even against the will of the parties, is peculiar to Courts proceeding according to the course of Chancery. At Common Law, no such power is recognized; the courts being obliged to try and determine the issue, upon such proofs as the parties may choose to produce before them, the Jury finding the fact forthwith, according to the balance of the evidence in favor of the one side or the other. But in Chancery, the Judge may not only postpone his judgment, but if he deems the evidence unsatisfactory, or is unable to solve the question upon the proofs already in the case, or from his own resources, he may require further information. This right of the Judge is inherent in his office, and does not depend on any consent of the parties, nor whether the matters of which he would inquire have been put in issue by the pleadings. It may even be matter which both parties would fain conceal from his notice; as in the case supposed by Sir Thomas Plumer, M. R., of a bill for the specific performance of a contract for the purchase of a cargo, which, in the course of the evidence, would appear to have been smuggled; or where the principal transaction involved another which was illegal;1 or, it may be matter possibly affecting the interests of persons not before the Court.

§ 331. One of the modes in which this right is exercised, is by examining witnesses viva voce, in open Court. Ordinarily, as we have seen, this course is not resorted to, except for the formal proof of exhibits. But it is employed in cases of contempt; 2 and in questions as to the proper custody of a ward; and in other cases of emergency, immediately addressed to the discretion of the Judge, or upon which he entertains doubt.4

3

1 Parker v. Whitby, T. & R. 371.

2 Moore v. Aylett, Dick. 643; Gascoygne's case, 14 Ves. 183; Turner v. Burleigh, 17 Ves. 354.

3 Bates, ex parte, Gresley, Eq. Evid. 494.

4 Bishop v. Church, 2 Vez. 100, 106; Lord, ex parte, Id. 26; Banks v. Farques, Ambl. 145. And see 4 Ves. 762, per Ld. Alvanley, M. R.;