Westcott v. Allston

Ridgely, Chancellor. I am of opinion that the deposition of Powell Gtarrettson should be read in the cause. There were two objections to this deposition; first, that the witness is interested in the cause; second, that the witness has not signed that part of the deposition which contains his answers to the plaintiffs interrogatories but after the examination was completed, that is, after the answers to all the interrogatories were given, then the deposition was signed at the end of it, and certified by the commissioner to be sworn and subscribed before him. The rule of court which requires that all objections to the execution of a commission or to the competency of any witness, should be made in writing on the third day of the term and not after, was never intended to supersede the necessity of filing articles. Generally, until the commission is returned and publication passes, the opposite party knows not who has been examined. When he discovers that any of the witnesses are incompetent, he is then on the third day to file his objections. This rule was made for the purpose of giving notice to the opposite side before the time of hearing, of objections, both as to the execution of the commission and the competency of the witnesses. If the objection is to the competency of the witnesses, then articles should be filed, so that the party producing the witness may sustain his credit or his competency by the examination ot witnesses. Here, before any objections or articles were filed, the defendant examined in chief as to the interest of the witness, Powell Garretson, and then filed his objections, which was irregular. [77] As to the form of the deposition, the only objection here is, that the witness did not sign his answers to the interrogatories of the plaintiff, as well as to the interrogatories of of the defendant. The signature of the witness is a signing to all the answers as made to all the interrogatories. The whole makes the deposition. They are all connected together, and are but one deposition. The commissioner certifies to his swearing and signing, and it is sufficient, although the distinct answers to the interrogatories of the plaintiff are not distinctly and separately signed. Let the deposition be read.