tested at the trial. Had it been contested, I should have thought the court bound to send the case down for a new trial." An answer in a court of equity is evidence against the party, who made it, and against all persons claiming under him. Thus, an answer to a bill filed in the Court of Exchequer, on a claim of tithe hay, by a vicar against the rector and others (occupiers of lands in the parish), will be evidence, in an action by a succeeding rector, for not setting out the tithe, against the defendant who claims under one of those occupiers; and it is equally admissible in evidence, although a decree is not shewn to have been made in the suit (1). Proof of an examined copy will be sufficient proof of the answer. (2) answer. The answer of a minor by his guardian is not evidence against him (3); because, in reality, it is the guardian's The guardian is sworn, not the minor, who possibly may know nothing of its contents. And therefore an answer, purporting to be the answer of a minor by his mother and guardian, may be read against the mother, in another cause, where she is defendant in her own capacity (4). The answer of one defendant, generally speaking, is not evidence against a co-defendant (5); for, if that were allowed, a plaintiff might make one of his friends a defendant, for the purpose of procuring an answer in his favour against the co-defendant, who would have no opportunity of cross-examination. As an admission by one of two partners, concerning joint contracts during the partnership, is good evidence to charge the other partner, in an action against him alone (6): so, in an action by a creditor against (1) Lady Dartmouth v. Roberts, 16 East, 334. (2) lb. (3) Eccleston v. Petty, Carth. 79. P. Wms, 237. Gilb. Ev. 44. (4) Beasley v. Magrath, 2 Schoale and Lefroy's Rep. 34. (5) Wych v. Meal, 3 P. Wms. 311. 12 Ves. jun. 361. (6) Wood and Others, Assignees of Hussey and Others, v. Braddick, I Taunt. Rep. 104. See ante, p. 73. some some of the partnership firm, the answer of another partner to a bill filed by other creditors, has been received in evidence against the defendants, not indeed to prove the partnership, but, that being established, as an admission against those who are as one person with him in interest. (1) It does not appear to have been expressly determined, whether an answer by a married woman can be used as evidence against her in an action after the husband's death. In the case of Wrottesley against Bendish and his wife (2), (where it was argued, that the wife was not bound to answer, on the ground, that the answer could not be read against her husband, nor against herself, as she is supposed to be under the control of the husband, and not to answer freely), the Lord Chancellor said, "he would not give any opinion, whether the answer may be read against the wife, when discovert; but as, in all times heretofore, the wife as well as the husband had been compelled to answer, he would not overthrow what had been the constant practice." Depositions in a suit in Chancery, which are the written Depositions. examinations of witnesses taken by officers of the court or by commissioners specially appointed for the purpose, may be given in evidence in an action at common law, on the same matter, between the same parties, or between any who claim under them, if it can be proved, at the time of the trial, that the deponent is dead (3); or, that he cannot be found after strict inquiry (4); or, that he has been subpœna'd and is unable to attend from sickness (5); or, if it can be proved, that he has been kept away by the contriv (1) Grant v. Jackson aud Others, Peake N. P. C. 203. See Lucas v De La Cour, 1 Maule & Selw. 250.; also P. 73, suprà. (2) 3 P. Wms. 237. (3) Godb. p. 193. pl. 276. & p. 326. pl. 418. Fry v. Wood, 1 Atk. Rep.445. Coker v. Farewell, 2 P. Wms. 563. Gilh. Ev. 54. Bull. N. P. 239. Benson v. (4) See cases in (3). (5) Luttrel v. Reynel and Others, ance ance of the other party (1); or, that he is out of the kingdom, or not amenable to the process of the court (2). In either of these cases, depositions are admissible in evidence. But if the witness himself is in a state to be produced, his depositions cannot be received. The party who wishes to have the benefit of his testimony, ought, if he is able, to bring him forward, that he may undergo an open examination, in the face of the public, before the jury and the court: a mode of inquiry, generally more conducive than any other to the discovery of truth. When a witness has been examined on interrogatories, and afterwards by accident becomes interested in the thing in question, the court of Chancery has allowed his depositions to be read for him, as evidence in his own suit, on a bill of revivor (3). "This," said Lord Hardwicke, "has been allowed on just reason; because his evidence must be taken, as it stood at the time of his examination, which should not be set aside, unless it could be supplied by other evidence (4)." But a different rule has been established in courts of common law. It was resolved in Tilly's case by the unanimous opinions of the courts of King's Bench and Common Pleas, that a party to an action of ejectment could not give in evidence his own depositions, though he had made them at a time when he was perfectly disinterested. (5) Depositions are not to be admitted in evidence for a party to the suit, against a stranger, who was not a party, nor claims under either of the parties (6); nor can they be (1) Bull. N. P. 243. (2) 1 Atk. Rep. 445. Lord Altham v. Earl of Anglesey, tr. at bar in K. B., Gilb. Eq. Cas. 16. 18. (3) Goss v. Tracy, 2 Vern. 699. I P. Wms. 287. S. C. Haws v. Hand, 2 Atk. 615. (4) In Glyn v. Bank of England, 2 Ves. 42. (5) Tilly's case, 1 Salk. 286. See also Holcroft v. Smith, Eq. Cas. Ab. 224; Baker v. Lord Fairfax, I Str. 101; Bull. N. P.242. (6) Hob. Rep. 155. 2 Roll. Ab. 679. pl. 8. 1 Vern. 413, Coke v. Fountain. used used by a stranger against one of the parties (1). An exception has been sometimes made in cases where the question is on the existence of a custom or on the right to tolls, or where hearsay and reputation would be good evidence (2); and it has been said, that in such cases depositions may be admitted, though the parties in the two suits are not the same. But, after the opinions expressed by some of the judges in the Berkeley peerage case, respecting depositions in a question of pedigree, there is reason to doubt, whether such evidence would now be considered admissible. (3) When a bill has been dismissed, the rule respecting the admissibility of the depositions has been laid down with the following distinction. If the bill was dismissed, because the court considered the matter to be unfit for equity to decree, the depositions may still be given in evidence, provided the subject-matter of the suit was regularly before the court, and within its jurisdiction (4). But if the suit in equity be dismissed for the irregularity of the complainant, the depositions in that cause cannot be read in any fresh suit. Thus, where a devisee brings a bill of revivor, on a suit commenced by his devisor, and depositions are taken, and then the cause on the hearing is dismissed, because a devisee, claiming as a purchaser and not by representation, cannot bring a bill of revivor, the devisee will not be allowed, on exhibiting a new original bill, to use the former depositions; for, in the first cause, in which the complainant mistook his remedy, there was no complaint regularly before the court, and consequently there could not regularly be any depositions (5). For the same reason, such depositions would not be admitted as evidence, in a fresh suit at law. (1) Rushworth v. Countess of Pembroke and Currier, Hardr. 472. Gilb. Ev. 55. See ante, p. 231. 233. (2) Bull. N. P. 239. P.233. See ante, (3) See ante, p. 179, 180. and see Banbury Peerage case, ante, p. 263. (4) Smith v. Veale, 1 Ld. Ray. 735. (5) Backhouse v. Middleton and Others, Chan. Cas. 175. Gilb. Ev. 56. Smith v. Veale, 1 Ld. Ray. 735. If the witness after being examined de bene esse should die before the defendant puts in his answer, his deposition cannot be read (1), because the opposite party had not the power of cross-examination; and the rule of common law is strict, that no evidence shall be admitted, but what is or might have been under the examination of both parties. "In such a case," says Ch. B. Gilbert (2)," the course is to move the court of Chancery, that the deposition of the deceased witness should be read; and, if the court see cause, they will order it, and this order will bind the parties to assent to the reading of such depositions, though it does not bind the court of nisi prius." It is the common practice in the court of Chancery, when an issue or trial at law is directed, to make an order that the depositions of witnesses shall be read in evidence, if it be satisfactorily proved at the time of the trial, that they are unable to attend in person (3). But this order is not made, for the purpose of making that admissible in evidence, which is not strictly admissible in courts of common law, but for the convenience of the parties. For if depositions are offered at the trial without such an order, the whole record, bill, answer, &c. must be proved; but, if there is an order for reading the depositions, the court of law will read them without going through the regular and strict course, which is generally necessary for the purpose of making them evidence. (4) The reason why depositions are not read in evidence, before the defendant has put in his answer, has been before mentioned to be, because it does not otherwise appear that the adverse party had liberty to cross-examine. This reason will not apply, where the defendant is in contempt for refusing to answer. If the adverse party, says Ch. B. Gilbert, had been in contempt, then the depositions of |