this filing takes place in due time. It is not unusual for him, though possibly irregular, to take charge of the deposition himself for that purpose. It is likewise a matter of obvious convenience, and not unfrequent practice, to detain the deposition for the purpose of making copies for use, either filing it before, or producing at the trial. Of course, all these matters of mutual convenience rest entirely in good feeling and the spirit of mutual accommodation, so desirable in matters of mere practice. The better course will be to make them a matter of written stipulation in all cases, to avoid any possibility of future misunderstanding.

The legal effect of an examination taken under these provisions, appears to be precisely that of an answer in chancery, under the old practice. It is conclusive upon the party examining unless and until it is disproved. Sheldon vs. Weeks, 7 L. O., 57.

A deposition of this nature is to be treated precisely as that of any other witness. The party offering it is not bound to read the whole on his own behalf, but his adversary may bring forward any omitted portions, if relevant and competent, as evidence in his own favor. Gellatty vs. Lowery, 6 Bosw., 113.

(9.) RIGHT OF REBUTTAL.

As above noticed, this right is expressly given to the adverse party by section 393.

The principle was acted upon, with reference to evidence given on the actual trial, in Armstrong vs. Clark, 2 C. R., 143, a decision expressly based on this section.

By calling his adversary, a party makes him so far his own witness that he cannot introduce evidence for the mere purpose of directly discrediting him. His right in that respect only extends to disproving the facts to which he testifies. Pickard vs. Collins, 23 Barb., 444. See also, generally, Thompson vs. Blanchard, 4 Comst., 303, 311, there referred to; and Parsons vs. Suydam, 3 E. D. Smith, 276.

(h.) RIGHT OF ADVERSE OR INTERESTED PARTIES TO TESTIFY. The powers to testify, and the limitations and qualifications of those powers, for which special regulations are made by sections 395, 396, and 397, seem, for present purposes, to be merged in the general and sweeping facilities afforded by section 399, as amended in 1860. Any party or person interested, being now competent to testify for any purpose, and under any circumstances, with the exceptions stated in the section itself, the whole of the former distinctions are now practically swept away. It will therefore be superfluous to enter into any lengthened consideration of these distinctions. The innovation being, how

ever, so recent, a glance at them may not be unprofitable. As to the power of examining either husband or wife under the section as it now stands, see Barton vs. Gledhill, 12 Abb., 246.

The rule as to what was or was not new matter brought forward by a defendant, entitling the adverse party to testify on his own behalf in rebuttal, under section 395, was liberally applied in Myers vs. McCarthy, 2 Sandf., 399.

In Chamberlain vs. Hamilton, 18 Barb., 324, a stricter construction was put. So also in Richardson vs. Wilkins, 19 Barb., 510, which lays down the principle that where, for the most part, the defendant's testimony is merely responsive or explanatory, the plaintiff can only offer his own evidence in rebuttal, as regards any excess, in its nature strictly affirmative.

A defendant, testifying to a counter-claim, was held to let in the plaintiff's evidence on that point. Harpell vs. Irwin, 3 E. D. Smith, 565; 1 Abb., 144; Anon., 3 Abb., 102.

The doctrine that co-defendants could not be examined in each other's favor, without the express leave of the court, as held under the Code of 1848, in Roberts vs. Thompson, 1 C. R., 113; and Taylor vs. Moirs, 1 C. R., 123, is clearly obsolete.

§ 205. Refusal to Testify.

The consequences of such a refusal are clearly pointed out by section 394.

The party refusing may be punished as for a contempt; And his complaint, answer, or reply may be stricken out. Whether both of these remedies will be enforced, rests necessarily in the discretion of the court. Neither is necessarily imperative; either may be adopted, according to the peculiar circumstances of the case.

If the requisition be in its nature vexatious, the court may refuse to inflict any penalty. Where, therefore, a defendant had arranged to sail for California on Monday, and a summons for his attendance on Tuesday was served on the Saturday preceding, a motion to strike out his defence was denied. Bennett vs. Hall, 10 L. O., 191.

The penalty of striking out the recusant's pleading may also be denied, on good reason shown for not inflicting it, even in case of actual disobedience. Anderson vs. Johnson, 1 Sandf., 713; 2 C. R., 95. And, under such circumstances, a joint defence cannot properly be stricken out, on the ground of the default of one only of the parties. Same case.

Under ordinary circumstances, and especially when the testimony refused to be given is only partial in its nature, and does not tend to

decide the whole issue between the parties, the court will probably stop short at the enforcement of process of contempt as in the case of a contumacious witness. See Anderson vs. Johnson, supra; Taggard vs. Gardner, 2 Sandf., 667; 2 C. R., 82. The doubts as to the powers of the court in this respect, in the early case of Bennett vs. Hughes, 1 C. R., 4, seem clearly unfounded.

The nature of the process of contempt by which a deposition can be enforced under these circumstances, will be considered in the next chapter, under the head of depositions de bene esse. See also, Gaughe vs. Laroche, 14 How., 451; 6 Duer, 685; 6 Abb., 284, note. The process must be by way of warrant, under the hand of the judge, not by ordinary attachment. Bleecker vs. Carroll, 2 Abb., 82.

In a case of gross contumacy, however, as, for instance, where a party had surreptitiously obtained the possession of important papers, and refused to produce them on a subpoena duces tecum, the full penalty will be enforced, and his pleading stricken out. Bonesteel vs. Lynde, 8 How., 226; affirmed, 8 How., 352.

To bring the adverse party into contempt, and especially to induce the court to take the extreme measure of striking out his pleading, the party moving must pursue strict practice.

Full and complete service should be made of the original summons and notice, by which the attendance of the adverse party is required, and his fees as a witness paid. See above, under the head of Notice to Party, and cases cited. And on the face of the summons itself, or on an order, if one be obtained, the consequences of his failure to attend must be clearly pointed out. See Anderson vs. Johnson, and Gaughe vs. Laroche, above referred to.

If the moving party be not himself in attendance at the time and place appointed, the whole proceeding falls to the ground, even although the party summoned fail to appear. Nor will any subsequent stipulation between the attorneys avail to cure the defect, or tend to bring the party into contempt. Gardiner vs. Peterson, 14 How., 513.

The moving party cannot sustain proceedings for contempt on the original notice to appear and be examined, even though it point out the consequences of neglect. Before his adversary can be drawn into contempt, he is entitled to an opportunity to be heard, and to full notice of motion after actual default. Hewlett vs. Brown, 1 Bosw., 655; 7 Abb., 74.

The motion should, therefore, be noticed accordingly, asking first the same relief as was previously notified in the summons or notice, with the usual further clause, and a demand for costs of motion. It should be grounded on the papers originally served, and upon proof of their service, of attendance at the time and place appointed, and of default

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there made; and copies of these latter proofs should be served with the notice.

As to the consequences and effect of a refusal to answer a specific question, see, generally, Burnett vs. Phalon, 19 How., 530; 11 Abb., 157.

§ 206. Rules of Evidence under Code Generally Considered.

It would, of course, be neither practicable nor desirable, in a mere work on practice, to enter, or even attempt to enter, in detail, into the subject of the law of evidence, generally considered.

The observations in the present section will, accordingly, be strictly confined to the changes in that branch of the law effected by the provisions of the Code as contained in chapter VII., title XII., part II., above cited; and this in their practical rather than their theoretical aspect.

Those changes may be reduced under two general heads, thus: Any witness, however interested in the controversy, is now admitted to testify without measure or distinction;

And any party is equally competent to testify, even on his own behalf, on any matter in issue in the cause.

This last rule is, however, subject to the limitation imposed by section 399, prohibiting a party, and also his assignor, from being examined on his own behalf, in respect to transactions or communications had with a deceased person, as against parties representing or deriving title under such deceased person, unless in rebuttal, in the event of such last mentioned parties tendering their own evidence.

And, from 1860 to 1862, to the further limitation that husband and wife could not be required to disclose communications made by one to the other, but which was stricken out on the last revision.

With the above exception, all the former refinements and distinctions as to admissibility or non-admissibility of evidence, on the ground of interest, are entirely abolished.

But, of course, this abolition does not tend to impeach or to abridge the existent rights of a party to object to the testimony of any witness, whether a party to the record or not, on other and distinct grounds, such as infamy of character, or the like. See, as to the disqualification by reason of a conviction, and its extent, The People vs. Shay, 18 How., 358; 10 Abb., 413; 22 N. Y., 317. See likewise, as to disqualification of a referee, Morss vs. Morss, 11 Barb., 510; 1 C. R. (N. S.), 374; 10 L. O., 151. But not, it seems, of an arbitrator. Cole vs. Blunt, 2 Bosw., 116. See also, below, as to the question of the evidence of husband or wife. As to the privilege of a witness, when asked to criminate himself, see Byass vs. Smith, 4 Bosw., 679.

Nor does it, in the slightest manner, affect any considerations regarding the credibility of testimony when given, as distinguished from its admissibility. See Roberts vs. Gee, 15 Barb., 449; Boyd vs. Colt, 20 How., 384.

The above radical alteration in the previous rules of evidence is, in its full extent, so recent, dating from the amendment of 1860, and is also so entirely clear in its terms, and so sweeping in its general effect, that the reports contain, as yet, comparatively few decisions on the subject.

In view of the completeness and probable permanency of that change, it seems unnecessary to enter into any detailed examination of the different phases of construction which have accompanied the corre sponding phases of legislation upon the same subject since 1848. Still inasmuch as for some little time the different points which have been decided are liable to come up for revision or application in cases in which appeals have been taken, a cursory notice of them may be desirable, arranging them into general and broad classes, rather than seeking to draw minor distinctions.

It may be convenient, for this purpose, to draw attention to the dif ferent epochs which have marked the course of legislation on this subject, as regards the evidence of parties or privies to the record.

As respected mere witnesses, the disqualification, on the ground of interest, was abolished by the original Code.

The first epoch consists of the period from 1848 to 1857:

During this time a party to the record was excluded in all cases; So also was a person for whose immediate benefit the action was prosecuted or defended.

From 1848 to 1851, an assignor of a chose in action was likewise excluded from testifying, when the assignment was made for the purpose of making him a witness. See 1 C. R., 55, for notice of English decisions, under similar rules, as there established by statutes 7 and 8 Vict., ch. 85.

In 1851 this rule was relaxed, and the testimony of such an assignor admitted, but under restrictions. If he gave evidence, the adverse party was allowed to testify on his own behalf, pro tanto. And his evidence could not be received against a party standing in a representative capacity, unless the other party to the original contract or transaction was living, and his testimony procurable. Notice of such examination, specifying the points of testimony, was also required to be given.

The second epoch dates from the amendment of 1857, and extends down to that of 1860.

In the former year, the grand and radical change took place of sub