25. Of pas sing publication.

Of Passing Publication.

When the examination of witnesses on both sides is perfected, either party serves the other with a rule or order of court, importing, that the depositions will be made public, unless sufficient cause be shown against it, within a time therein expressed, which is a rule of three weeks.(a) If no cause is shown, the rule is made absolute; this is termed "Passing publication," and absolves the examiner from his oath of secrecy. One rule to produce witnesses, and one rule to pass publication shall be sufficient, and each shall be a rule of three weeks.(b)

Publication.

After publication has passed, but the depositions taken not read, a motion to enlarge the time of publication will not be granted but on special cause shown, and due notice to the opposite party of the motion.(c)

After publication has once passed, witnesses cannot be examined, unless under very special circumstances.(d)

To enlarge publication, is to stay or postpone the rule for passing publication; and a motion for that purpose may be granted, on reasonable cause shown; but this is very different from a motion to examine witnesses, after publication has actually passed.(e)

The deposition of a witness, whose examination was not closed until after publication had passed, was allowed to be read, be having been cross-examined by

(a) Rule 20.

(b) Rule 20.

(c) Hamersley v. Brown, 2 Johns. Ch.

Rep. 428.

(d) Hamersley v. Lambert & others, 2 Johns. Ch. Rep. 432.

(e) Ibid.

the opposite party, and no actual abuse appearing; but such practice is irregular.(a)

Day is given to the defendant above mentioned, to show cause why publication should not pass in

1818.

Elmendorf, clerk.

three weeks. Dated this

day of

To G. H. Esq. def'ts. sol❜r.

This notice of the rule, as well as the notice of the rule to produce witnesses, is usually served by the clerk in court himself upon the solicitor, to whom it is addressed, although it may be safe for the solicitor to attend to it himself, and see that the notice is actually served.

Day is given to the defendant, (or plaintiff,) for passing publication upon a joint commission returned. Elmendorf, clerk,

(a) Underhill v. Van Courtlandt and others, 2 Johns. Chan. Rep. 339.

We consent that publication do forthwith pass.

E. F. Sol'r. for Comp't.

G. H. Sol'r. for Def't.

Of this rule, the solicitor entering it, must give the adverse party notice, and at the expiration of the time limited by the rule, the solicitor for the complainant obtains a certificate from the clerk, that the rules for the examination of witnesses, as well as for passing publication are expired; and on the delivery of this certificate to the register, or assistant register, he will enter an order in his book to the following effect;

On reading and filing the certificate of Edmund Elmendorf, Fsq. the clerk of this court, residing in the city of New-York, by which it appears, that the rules to produce witnesses and pass publication in the above cause have been regularly entered and served, and have expired; and on motion of Mr. E. F. solicitor for the complainant, it is ordered that publication in the said cause do pass immediately.

After the entering of the above order, either the complainant or defendant may obtain a copy thereof,

serve the same on the examiner, and thereby obtain copies of the depositions taken in the cause, which closes the examinations.

There can be no further examination of witnesses, even though witnesses should have been sworn in a cause, and their examination commenced, it cannot be proceeded on without an order of the court for enlarging publication.

But until this rule expires, either party may file interrogatories, and continue to examine his witnesses. Publication may, and most commonly does pass by. consent of parties, that is, when both parties have examined their witnesses, and are thereby prepared to bring the cause to a hearing, a rule is entered with the register by consent that publication forthwith pass, or that it pass in such time as may be limited by the rule. (Vide consent rule, ante 148.)

After the examination of the witnesses, and the rule for publication is entered, publication may be stayed by motion in court, or petition to the chancellor soon after publication has actually passed, upon proper grounds being stated by affidavit. The court, upon motion or petition, will grant the party leave to examine other witnesses, but the court will not do it if the party applying for this favor has seen, or read the depositions taken in the cause, and it must appear to the court by the affidavit that this has not been the case.(a) (Vide, under the head of motion, post.)

Where publication had passed in a cause without any witnesses being examined on either side, the court refused, especially after the elapse of more than two years from the time of filing the bill, to open the rule

Van Buru

Amending

for publication, on the affidavit of the plaintiff, of the discovery of a witness, who would prove a material fact in the cause denied in the answer. (a) Nor would the court, under the circumstances, award a feigned issue in the cause, that being a measure of sound discretion. (Ibid).

Amending Depositions of Witnesses.

After publication passed, and the cause set down for depositions of hearing, the deposition of a witness was allowed to be

witnesses.

26. Of exa

credit or com

amended on examination of the witness by the court, he being aged, and very deaf, and a mistake made by taking down his testimony by the examiner.(b)

A witness who has been examined before a commissioner by consent of parties, on affidavit that his testimony was not truly taken down by the commissioner, who had mistaken it materially, was ordered to be re-examined before the examiner, there being no suggestion of any tampering with the witness.(c)

Óf Examining to the Credit or Competency of Wit

nesses.

After publication has passed, and the depositions delimining to the vered, if either party excepts to the competency or crepeteney of wit- dit of any of the witnesses examined in the cause, he shall be at liberty to file articles with the clerk in court, as of course, and shall furnish the adverse party with a copy thereof, and with notice of his intent to examine to the competency or credit of any witness before examined in the cause, specifying which, and shall there

(a) Smith v. Brush and others, 1 others, 1 Johns. Chan. Rep. 526. Johns. Chan. Rep. 459. (c) The Trustees of Kingston v. Tap (8) Denton and others v. Jackson and pen, 1 Johns. Chan. Rep. 368.