Fream v. Dickinson , 3 Edw. Ch. 300 ( 1839 )

The Vice-Chancellor :

I think it was competent for the master, under the general authority of the 102d rule, to issue his summons, upon the request of the defendant’s solicitor, for the examination of the witness on the part of the defendant, The rule provides that masters may, from time to time, as circumstances may require, fix the time within or at which any proceedings before him shall be had, &c.

On the first day of December, it became important to take the testimony of a witness on the part of the defendant. The reference was still open, and admitted of further examination of witnesses; and, by issuing the summons, the master did but fix a time when he would proceed a step in the cause. In doing this, he infringed no right of the complainant’s in regard to the conduct of the reference. The master did not thereby commit the reference to the defendant under the 101st rule.

His summons only operated as a notice to the complainant of the examination of a witness before the master; and I see no such irregularity in it as to justify the suppression of the deposition on that ground.

The next question is, as to the incompetency of the witness from interest 1 He was not interested while his examination in chief was going on. It was not until after his direct examination closed, and while he was under a cross-examination, that his interest accrued by the death of his wife’s father. Up to that moment of time he was not legally incompetent as a witness ; but when his direct examination was resumed, he had become incompetent, though the witness was ignorant of the fact which made him so. Under these circumstances the whole deposition cannot be rejected. The utmost that the complainant can have a right to object to is, that portion of the testimony which was given by the witness' after he had been cross-examined, and when his direct examination was resumed. And this can only be upon strict technical rule of law. I think the line must here be drawn; and all that had been done previous to and at the moment of Mr. Purdy’s death should stand ; giving to the complainants at the same time, the benefit of the whole of the cross-examination.^(a) This likewise meets and obviates all difficulty arising from the abatement of the suit: see 1 Dick. 277.

Order, that so much of the deposition be suppressed, as was taken, on the part of the defendant, after the witness had been once cross-examined.

(a ) See Goss v. Tracy, 1P. Wm. 288 ; Haws v. Hand, 2 Atk. 615 ; Glynn v. The Bank of England, 2 Ves. Sen. 42.