
    Withers and others against Gillespy.
    
      Monday, June 4.
    In Error.
    Whenbooks are produced on notice, and entries are read in evi** dence by the jiarty calling for them, the party producing them may read other entries necessarily connected with the former entries, if made prior to the commencement of the suit.
    it seems however, that the rule is different if the party merely inspect the books, with a view to their being used.
    The Court will notice the time of the commencement of the suit, as it appears in the record, though it is not stated in the bill of exceptions accompanying the record.
    A deposition taken by a commissioner appointed by the defendants, (no person appearing on behalf of the plaintiffs,) is not • vid» nee, if ¡t appear that the witness had not answered one of the defendants’ interrogatories, and had been examined, and had answered generally to the cross inter» ogatories,—or that only a part of the cross interrogatories filed by the plaintiff were put and nsweredo
    ERROR to the Court of Common Pleas of Lancaster count)-*
    This was an action of assumpsit brought by the plaintiff below, James Gillespy, against John Withers, George Withers, and Michael Withers, to August Term, 1812, to recover for work and labour performed for the defendants. The writ was sued out on the 27th May, 1812. On the trial in the Court below, the plaintiff having given in evidence the day book of the defendants, produced pursuant to notice from the plaintiff, and read therefrom certain entries in the different pages of the book, giving the plaintiff a credit of forty-three pounds and one shilling, for cutting a number of loads of wood, and having gone through his other evidence, the defendants to sustain the issues on their part, offered to read in evidence an entry on a different page of the same book. This entry bore date of the 30th November, 1812. The plaintiff objected to this evidence, and the Court overruled it. The defendants then cross examined John- Fulmer, one of the plaintiff’s witnesses, and again offered the same entry in evidence ; but, on being again objected to by the plaintiff, it was again overruled by the Court, and an exception take.n to the Court’s opinion. The defendants also, offered to read a different entry, in the same book, of the 30th November, 1812, charging the plaintiff with the sum of six pounds two shillings and eight pence, for provisions received by him. The plaintiff admitted that he had received provisions to the amount of six pounds two shillings and eight pence, but objected to the reading of this entry, and it was overruled by the Court, who sealed another bill of exceptions.
    The defendants, having further cross examined John Fulmer, again offered the same entry last mentioned. It was again overruled by the Court, on being objected to by the plaintiff, and another bill, of exceptions taken.
    The defendants also offered in evidence the deposition of James Blake, a witness on his behalf, taken in August, 1818, before Joseph Blackston, commissioner, who was named as commissioner by the defendants, no person being named by the plaintiff, though they filed cross interrogatories; nor did any one attend the examination in behalf of the plaintiff. The objection to this deposition was, that the witness had not answered one of the defendants’ own interrogatories, {viz. Do you know any other matter or thing, material to the parties in this cause, or either of them ?) and that he had been examined, and answered generally to all the plaintiff’s interrogatories. The plaintiff objected to this deposition, and the Court overruled it: The plaintiff thereupon excepted to the Court’s opinion.
    The defendants further offered in evidence another deposition of Bernard Cummin, a witness on his behalf, taken before the same commissioner, in August, 1819. Only two, out of the five cross interrogatories put by the plaintiff, appeared, by the examination returned, to have been put to the witness. This deposition being objected to bjf the plaintiff, the Court rejected it as improperly executed, and the defendants took another exception.
    Hopkins, for the plaintiffs in error.
    The three bills of exceptions, respecting the entries in the day book, are, in effect, on the same point, and may be considered together. The defendants produced their book, on notice from the plaintiff, who read certain entries in it: the defendants then offered to read other entries in the same book. rI hese, it is admitted, were not evidence per se, but became so, in consequence of the plaintiff’s having made use of the book as evidence. Phill. Ev. 211. 338, note.
    The depositions- of Blake and Cummin were rejected, as not duly executed. We say that the interrogatories were answered in substance though not in form. As no commissioner was named by the plaintiff, the one named by the defendants must be considered as the commissioner of both, and defects of form will be aided. Stewart v. Boss, 2 Dali. 157. 1 Teates, 148, A. C. Vaughan v. Blanchard, 1 Teates, 192.
    
      Buchanan, contra,
    confessed that, in general, if one party calls for the book of the other, and uses it as evidence for himself, he renders the rest of the book evidence for his adversary. But the present case forms an exception, because the entries offered by the defendants were made after this suit was commenced. This need not appear in the bill of exceptions, if it be shewn in the record accompanying it, though where the record is not tacked to it, it must appear in the bill. Bull. N. P. 317. As to one of the entries, the plaintiff admitted that he had received provisions to the amount of six pounds two shillings and eightpence, arid therefore the judgment cannot be reversed for the rejection of evidence as to that article.
    As to the depositions, the questions put were not answered. The commissioner was appointed by the defendants only. The interrogatories should have been put distinctly on the part both of the plaintiff and defendants, and the consequence of omitting to do so has been, that the answers are indistinct. In Stewart v. Boss, 2 Dali.. 157. 1 Yeates, 141, A. C.\ the plaintiff was present when the depositions were taken. Hence the Court considered the irregularity as ■ waived. Where interrogatories are answered generally, and not fully, the deposition is bad. Miller v. Dawdle, 1 Yeates, 404.
    In Harrison’s Chancery Practice, 327, the manner of executing commissions, is stated. The witnesses were sworn to make true answers to the interrogatories, and not generally to tell the truth, the whole truth, and nothing but the truth. It follows, that each interrogatory might be put to the witness, who is under examination.
    Hopkins, in reply,
    insisted that the Court was confined to the bill of exceptions, and cannot take notice of any thing out of it, and that the time of bringing the suit, did not appear in the bill. The cause was not at issue, till after the date of the entry in the defendants’ book. As to the plaintiff’s admitting, that he had received provisions from the defendants, that does not deprive them of the right to prove it by their book. In respect to the execution of the commissions, great allowance should be made for the difficulties that attend their execution. They are executed through courtesy, and often by unlearned men. In the case of Miller v Dowdle, 1 Yeates, 404, the interrogatories were not answered at all. Besides the objections came too late. Complaint should have been made to the Court to have the commissions suppressed, that others might issue. Hopkins then endeavoured- to shew, that the interrogatories had all been substantially answered.
   The opinion of the Court was delivered by

Gibson J.

The first three bills of exceptions contain exactly the same point and may be considered together. The plaintiff having given in evidence from the defendants’ book produced on notice, two entries by which he had received a'credit for work and labour done ; the defendants offered in - evidence two other entries in a different page in the same book, and of á date subseqdent to the commencement of the suit, which were rejected ; and this is the first error assigned. The rule that books produced on notice and used, ¡become evidence against, as well as for, the party calling for them, seems to rest on the same grounds as that which requires the whole of an admission or confession to be taken together to shew the exact meaning of the part relied on ; and if so, it must be subject to the same limitations. The only thing peculiar to it is, that the books need not be actually used ; for if inspected with'a view to be used, they are, it is said, equally evidence for both sides : the reason is, that it would give an unconscionable 5advantage, to enable a party to pry into his antagonists affairs, for the purpose of compelling him to furnish evidence against himself, without, at the same time, subjecting him to the risque of making whatever he inspects, evidence for both parties. Reciprocity therefore appears to be the ground of the distinction. But the distinction itself has been denied, and, it seems to me, for reasons drawn from analogy, .which render the' argument almost insuperable. ■ The notice, is a means employed in the room of a bill of discovery, for' getting at evidence in the power of the opposite party, and only a different mode of arriving at the same end ; and whether the evidence is disclosed by answer on oath, or produced on notice without it, can make no difference, except that it .receives a sanction from the oath in the first case, which is wanting in the latter: yet the answer in chancery, with this additional claim to respect, is confessedly1 evidence only for the party who has obtained it. Indeed the distinction does not, at the present day, seem to.be conclusively established either in this country or elsewhere : as may be seen in a note to Clarkson v. Vanhorne, 1 Johns. 394. But where books and papers are produced and used, there' is no doubt but proof of authenticity is -dispensed with, and that they are in evidence for both parties. In the case of books, however, which necessarily contain a variety, of distinct and unconnected matters, the rule must be subject to limitations as to the extent of its operation. It cannot be pretended that the party pro-during them, will be enabled to use them for the purpose of introducing matter impertinent to the issue, or indeed any other fact which they would not be competent to establish if the usual introductory evidence of authenticity had been previously given. Here the defendants were, for all purposes of explanation, entitled to the benefit of every thing necessarily connected with the entries relied on by the plaintiff, which their books contained at the time the suit was brought;, but entries made afterwards, could avail them on no principle of evidence or reason. There would be little value in evidence thus procured, and, indeed, an end to proceeding by notice altogether, if after the suit was brought, and, it might be, notice actually received, the adverse party could sit down and make entries at pleasure, and insist on having these admitted to avoid the effects of previous entries, or to charge his antagonist on new and distinct grounds. It would be most unjust to say a party should neither use the entries in his adversaries books, nor give parol evidence of their contents, Unless in connection with whatever the latter might choose to subjoin.

But it is contended that the whole ground of error should appear on the face of the bills of exceptions ; and that as the plaintiff gave no evidence of the day of issuing the writ, or at least as no such evidence was introduced into the bill of exceptions, it cannot now judicially appear that the entries were of a date subsequent to the inception of the suit. It however appears from the record, that they were made after the term to which the action was brought. The object of the statute was to enable a party to bring on the record what would not otherwise appear; and although the plaintiff in error must confine himself to the objection taken at the trial, insomuch that no evidence will be intended to have been given which does not expressly appear, still the court are supposed to have had the record before them, and to have taken notice of the term to which the writ was returnable. By our practice, the bill of exceptions is part of the record, and always comes up with it; and for that reason the Judge is never called on to acknowledge his seal, which is necessary only where the bill of exceptions has not been tacked to the record. Clarke v. Russell, 3 Dall. 419. (in note), Bull's N. P. 317. Here the whole exception sulficiently appears of record; and I am of opinion the entries insisted on by the defendant, were properly excluded.

The second assignment of error relates to the rejection of two depositions, taken on separate commissions obtained by the defendants, and in which the plaintiff filed cross interrogatories. In one case the objection was, that the witness had not answered one of the defendant’s own interrogatories, and that he had been examined and had answered generally to the cross interrogatories; and in the other, that only two out of five of the cross interrogatories appeared to have been either put or answered. It is too clear for argument that this evidence was properly rejected. The person employed to take the deposition was exclusively the commissioner of the defendants, and as it does not appear that any one attended on the part of the plaintiff, there is no ground to presume that any of his interrogatories were waived. It was therefore the business of the commissioner, distinctly to put to the witness all the questions proposed by the parties, particularly those of him against whom the evidence was to be used, and separately to note the answer to each. The witness is not sworn in chief but to answer the interrogatories which accompany the commission; and if the answers are noted in mass, it cannot satisfactorily appear that the opposite party has had the full benefit of a cross examination. The commission is, at best, but an imperfect means of extracting the whole truth, and one which, when not guarded by severe restrictions, is liable to be much abused. It is therefore no more than just that he who recurs to it, and whose duty it therefore is to see to its execution, should derive no benefit from it wherever there is the least room to suspect that every thing has not been fully complied with. In this matter Courts should never relax; for an adherence to form is the only security for a due attention to substance, and the only safeguard of the opposite party’s rights. Here it is scarcely pretended that the execution of the commission was not defective ; but it is argued that the proper course would have been, to move before the trial to have the depositions suppressed, and that an omission to do this was a waiver of every irregularity: but in this State, the practice of taking the exception at the trial is too firmly established to be questioned.

Judgment affirmed.  