
    Leonard C. Fuller vs. James M. Rice.
    Where.the testimony is substantially complete, a deposition, duly signed and certified, is not to be rejected because the cross examination was unfinished, in consequence of the sickness or death of the witness.
    A debtor, retaining in his hands funds for which he has been charged as trustee of his creditor, is liable therefor to the creditor after the time, within wiiich scire jadas could be commenced against him on the judgment in the trustee process, has expired. And if that time expire pending exceptions taken by him to a judgment in favor of the creditor in an action to recover such funds, judgment will be entered on the verdict.
    Action of contract to recover a balance found due to the plaintiff on the parties accounting together. Trial in the court of common pleas at December term 1853, before Mellen, J.
    The plaintiff offered in evidence a deposition, duly signed by the deponent, and certified by the magi=trate before whom it was taken, which was objected to by die defendant, on the ground that, as appeared on the face thereof, the cross examination was not finished, the deponent having refused to answer the nineteenth cross interrogatory (which only asked for a more particular statement of facts to which the witness had testified) in consequence of severe sickness, of which he soon afterwards died. The plaintiff then called a witness who testified that he was counsel for the plaintiff at the taking of said deposition ; that the deponent was at the time in feeble health; and that he understood from the defendant’s counsel that the interrogatory which the deponent declined to answer was the last which he proposed to put. The judge admitted the deposition.
    The defendant then proved that he had been summoned as the trustee of Fuller in foreign attachment, and had been charged on his answer to that process, and allowed to retain his costs, and, upon demand duly made, had paid over the balance in his hands in part satisfaction of the execution, retaining a sum for his costs; and that the judgment in that action was still in force and unsatisfied. It appeared that the amount so retained by the defendant exceeded the amount to which he was entitled for his costs ; and the judge instructed the jury that the plaintiff was entitled to a verdict for the difference. The jury returned a verdict accordingly, and the defendant alleged exceptions.
    This case was argued and decided at October term 1854'.
    
      F. H. Dewey, for the defendant.
    1. The defendant had the right to cross examine the deponent fully ; and as the cross examination was not finished, the deposition should not have been admitted. 1 Greenl. Ev. § 445. Rev. Sts. c. 94, §§ 15, 23.
    2. The judgment in the trustee process being still in force and unsatisfied, the defendant may be held liable on scire facias to the plaintiff in that action for the amount wrongfully retained, and cannot therefore be held liable for it in this action;
    
      N. Wood, for the plaintiff,
    to the point of the admissibility of the deposition, cited Savage v. Birckhead, 20 Pick. 167; Reed v. Boardman, 20 Pick. 441; Lee v. Thorndike, 2 Met. 313; Amherst Bank v. Conkey, 4 Met. 459 ; Lumley v. Gye, 3 El. & Bl. 114.
   Shaw, C. J.

The deposition was rightly admitted under the circumstances. No general rule can be laid down in respect to unfinished testimony. If substantially complete, and the witness is prevented by sickness or death from finishing Ms testimony, whether viva voce or by deposition, it ought not to be rejected, but submitted to the jury with such observations as the particular circumstances may require. But if not so advanced as to be substantially complete, it must be rejected.

The possibility of being liable in scire facias on the judgment in the trustee process would have warranted the defendant in moving for a continuance of the present case; but the two years after the rendition of the judgment, within which the scire facias must, by St. 1846,- c. 40, be served upon him, having now elapsed, the opinion of the court is that judgment be entered on the verdict for the plaintiff.

Exceptions overruled  