
    Robert J. Lessly v. Margaret E. Ogden.
    Equity Pbaotice. Oral testimony. Code 1892, g 1764.
    Wh'ere a defendant filed witli liis answer a written notice of a desire to liave tlie witnesses in an equity suit examined one terms in open court, and tlie complainant was misled thereby and consequently failed to take depositions, but caused tbe witness to appear in open court, it was not error for tbe court to deny defendant’s application to withhold tbe notice andl permit complainant to introduce testimony one terms in open court, although defendant consented to a continuance of the cause. Dlékerson v. Askew, 82 Miss, 436, distinguished.
    Ekom; tbe chancery court of Wilkinson county.
    Hon. William P. S'. Ventress, Chancellor.
    Mrs. Ogden, appellee, was • complainant, and Lessly, appellant, defendant, in tbe court below. Erom a decree in complainant’s favor, based on oral testimony delivered in open court, tbe defendant appealed to tbe supreme court. Tbe facts upon wbicb tbe opinion rests are stated therein.
    
      Bramlette & Tuclcer, and McWilKe & Thompson, for appellant.
    This was a bill filed by tbe appellee to set aside a conveyance on tbe ground of her mental incapacity at tbe time of tbe transfer and tbe alleged fraud of tbe appellant, her grantee, and bis failure to perform tbe consideration of tbe instrument. It is of course not one of that, class of cases in wbicb tbe witnesses may be examined in open court when tbe party desiring so to examine them gives tbe notice contemplated by § 1764, Code 1892. Dich&rson v. Asleew, 82 Miss., 436; s. c., 34 So. Rep., 157.
    Tbe above section of tbe code has been very generally misinterpreted by tbe bar and was thought to apply, to all kinds of equity suits until tbe decision cited wbicb was delivered only about a month prior to tbe trial of this case, and bad been pub-lisbed for a muck shorter time. Tbe solicitors of tbe defendant in tbe court below fell into tbe common error and gaye notice for tbe examination of witnesses in open court on the bearing of tbe cause. Having become aware of tbe above decision limiting this practice to minor’s business, etc., they objected to tbe oral examination of tbe witnesses and asked leave to withdraw tbe above mentioned notice, offering at the time to continue tbe cause. Tbe objection was resisted by tbe solicitor of tbe complainant who stated that be bad bis witnesses present and would consent to an oral examination in open court. Tbe court below thereupon overruled tbe objection and allowed tbe oral examinations to proceed.
    Tbe notice given by the solicitors of defendant in reference to an oral examination could have no reference to cases like the one before tbe court, and tbe matter stood just as if nothing-had .been done looking to an oral examination. The notice, which could have no relation to any except cases of a different character from that before tbe court, involved no element of consent or agreement. Even in tbe particular class of cases contemplated by § 1764, Code 1892, such notices cannot be treated as agreements, for tbe statute expressly provides as an alternative to tbe giving of notice that “the parties may agree in 'writing in any ease to nave ail or a part of the witnesses examined in open court.” The complainant bad tbe right to have her objection to oral examination sustained, and if this be true the defendant undoubtedly bad tbe same right, tbe notice being wholly without, effect in a case like tbe one on trial. Of course where a complication of this sort arises, one solicitor having misinterpreted the law and tbe other failed to take bis proof by deposition in consequence of such misinterpretation, tbe latter would not be forced to go to trial without any evidence of the affirmative matter on •which be relies, but tbe extent of bis right would be to have the opportunity to 'take depositions, and this was 'offered by. tbe‘so-licitor for tbe appellee.
    
      
      A. G. Shannon, for appellee.
    Law is not intended to be a game of hocus-pocus. It is intended to be the nearest possible approach to abstract justice. While abstract justice is unobtainable, on account of the many defects of our nature; it is the object at which the law aims. Of course no system of jurisprudence would be tolerable that did not have and enforce rules of practice, but no court will allow these rules to circumvent' justice or entrap the unwary. Complainant is informed by writing and of record that the defendant desires to take evidence orally in open court, .she confiding in the sincerity of the defendant, as she has been accustomed to do heretofore, brings her witnesses to court under a subpoena all secured by grace of the pauper’s oath, and proposes to consent to his request of record and gratify defendant. He turns blandly to the court and says: “I have now changed my mind; true I did not tell the complainant in time, for her to take depositions, in fact, I did not tell her at all, that I had changed my mind. It is also true that I have every one of my own witnesses here, and it will be no inconvenience to me to take this evidence in open court. The truth is, the thing I most want is a continuance, and therefore I will condescend to favor my adversary, she can have the continuance. True, I am ready for trial as the law looks at it, but looked at from my standpoint, a trial would be now, and at all subsequent times during complainant’s life, just outrageously inconvenient to me, so in my magnanimity she can: have the continuance.” This is just about what the defendant’s objection amounts to, and it is nothing but an injustice to complainant who has come into court under the defendant’s assurance that the evidence should be taken orally in open court.
    But besides being a case where an unconscionable advantage is sought to be taken in the court of conscience, complainant has come strictly in the law of the code, § II64, “or the parties may agree in writing in any case to have a part or all the witnesses examined in open court.”
   Oalhoon. J.,

delivered tbe opinion of the court.

We do not disturb tho conclusion of the chancellor on the facts. On the law, the ease is that appellant (defendant below) filed with his answer to the bill a written notice, signed by the counsel, as follows: “The complainant in the case will take notice that the defendant herein desires and intends to have witnesses examined in open court upon the hearing of this cause.” 'Relying on this, appellee (complainant below), by her solicitor, appeared with her witnesses for oral examination. But on offering to so examine them, defendant, silent until then, objected; relying on Dickerson v. Askew, 82 Miss., 436; s. c., 34 South., 157. The cases are not parallel. There it does not appear that anyone was misled. There the complainant in a cross bill gave the notice that leave would be asked for oral examination, and the defendant to the cross bill might well rely upon legal objections. There the defendant had done nothing to mislead the cross complainant. If mislead at all, she mislead herself; and no evidence appears in the record in that case, while in this all 'the evidence on both sides was produced and taken.' Here' the defendant gave notice of his “desire and intention” to have the witnesses examined orally, and the complainant acted on this, refrained from takeing depositions, and produced her witnesses, when, at that late period, defendant asked leave to withdraw his written notice and object to testimony ora terms, thus necessitating a continuance. We think that, at any period of chancery practice, before § 1764 of the code of 1892 was enacted, a chancellor willing to hear the evidence would have proceeded, and could . have properly proceeded. 1 The statute cannot be properly construed to justify the laying snares for the unwary, and this might be the result in many cases, notwithstanding that there was no such purpose in the case before us. The action of the parties here was equivalent to a written agreement, and the court properly refused to permit defendant to withdraw his notice and force a continuance. The statute is not to be used to set traps. Complainant relied 'on the assurance of the notice, brought her witnesses, accepted the proposition involved in the notice in open court, and was there met with a proposition of withdrawal of the notice in order to compel a continuance, notwithstanding defendant was ready with his witnesses, and did actually proceed with his oral evidence.- His point cannot be considered-on -general principles of fair dealing.

Affirmed.  