
    *Fant v. Miller & Mayhew.
    January Term, 1867,
    Richmond.
    1. Chancery Practice — Evidence—Answer.—The rule in equity practice that the answer of the defendant, upon any matter stated in the hill and responsive to it, is evidence in his favor, applies where a material disclosure is called for by the bill and made in the answer.
    2. Same — Answer—Defendant Unworthy of Credit— Effect.
      
       — A plaintiff cannot destroy the weight of the whole answer by proving that the defendant is unworthy of credit, nor can he incidentally do so by proving that the answer is false in one respect or several respects; the only effect of such proof being to destroy the weight of the answer to the extent to which it is disproved by' that amount of evidence which is required by the rule in chancery.
    3. Same — Bills of Discovery — Answer—Evidence.—The answer of a defendant to a pure bill of discovery, when used on a trial at law, is used as a matter of evidence, the whole of which is to be read as the testimony of a witness, including not only admissions against the interest of the .respondent, but, all assertions in his favor; subject however to be credited or discredited in whole or in part by the court or j ury, according to its own intrinsic weight, or its relative weight in comparison or connection with the other evidence in the action at law.
    4. Same — Same — Same—Effect-—when a plaintiff goes into equity for relief on the ground of discovery, the court will give to the answer of the defendant the same effect that would be given to it in a court of law; except that the plaintiff cannot contradict the answer by other evidence, as he would thereby prove himself out of court.
    5. Commissioners in Chancery — Continuances—Discretionary. — A commissioner properly has much latitude of discretion in granting continuances of proceedings before him; and the court whose order he is executing will not overrule his action in that respect, unless it be plainly erroneous. Still less will an appellate court reverse a decree for that cause.
    Witnesses — Re-Examination — When Permitted. ¡¡ — If the circumstances of the case, and justice, require that a second examination of the same witness should take place, an order will be made to permit it.
    7. Same — Same—Appellate Practice.  — Unless it was palpably improper to grant leave for the second examination of a witness, an appellate court will not, lor this cause, reverse the decree; as the circuit court ought to possess much latitude of discretion in the decision of such questions.
    8. Same — Deposition Written Beforehand. -A witness ought not to write his deposition or his answers beforehand; nor ought they to be written for him beforehand by counsel or any other person; but he ought to answer the questions orally or from memory, as they are propounded to him.
    
    
      9. Same — Methods of Refreshing flemory — Memoranda. —Parties or their counsel may orally or by writing, previous to the examination of a witness, direct his attention to the facts in regard to which he is intended to he examined; and he may refresh his memory in regard to such facts, by examining books or papers, and make memoranda from them or otherwise, especially of dates and amounts, and use such memoranda for the purpose of refreshing his memory, at the time of giving his evidence.
    10. Depositions — Opportunity of Party to Be Present— . Notice. — A party has a right to be personally present when depositions are taken by his adversary, and a notice which does not afford him an opportunity tobe present, is insufficient; and his exception to the deposition on that ground ought to be sustained.
    11. Same — Same.¶—if a party gives notice of the taking of several depositions at different places on the same day, so that the opposing party cannot be present to cross-examine all the witnesses, he may select which examination he will attend, and the other depositions will be suppressed.
    12. Same — Exceptions to — Waived — Appellate Practice.— An exception to a deposition, whether • endorsed on it, or taken and entered on its face in the process of taking it, or written on a separate paper and filed in the cause (except upon the ground of incompetency, in which case no exception is necessary), not having been brought to the notice of the court below or passed upon by that court, ought to be considered as having been waived, and cannot be noticed by the appellate court; and a general judgment or decree of the court below, against the party making the exception, cannot be considered as involving a decision upon the exception.
    
      ,3. Evidence — Reading of Letters from Third Persons — Exceptions to — Must Be Specific — An exception by a party to the reading of any and all letters from third persons to the other party, filed in the cause, as res inter alios oesta, except such as the exceptor made evidence by reading them himself, some of which letters are competent evidence forsome purposes, is too broad, and may properly be overruled on that ground. The exception should specify the letters or parts of letters intended to be excepted to.
    14. Accommodation Loans — Collateral Security — Case at Bar. — M is a wholesale merchant and P is a jobber; in the city of B; and P makes an arrangement with M to obtain accommodation from M from time to time, in the form of loans, discounts and the sale of goods, on the terms of placing the bonds, notes and accounts of his customers in the hands of M, as collateral security. There is no agreement as to the mode in which these collaterals are to be dealt with by the parties. P afterwards fails* largely indebted to M, who holds these collaterals in large number and amount, the debtors being scattered widely over the country. It is to be inferred:
    1. Same — Same—Notification to Collateral’Debtors.— That before the failure of P it was not intended or expected that M was to do more than hold the credits thus placed in his hands, receiving the amount of such as might from time to time be paid to him; but taking no steps to enforce such payments, nor even to notify the collateral debtors of the assignment of their debts.
    2. Same — Same—Collection by Principal Debtor.— That it was notintended that P should be authorized to collect or renew or otherwise deal with the collaterals, except upon the terms of his paying or delivering to M the money collected, or the renewed notes, or substituting1 others equally good for any that might he withdrawn for the purpose of collection or renewal.
    3. Same — Same—Collection by Principal Creditors.— After the failure of F it became the right and duty of M to collect, as far and as soon as he could, all the collaterals in his hands, apply the proceeds to the payment of his claim against F, and pays him the surplus, if any. And M was bound to use common or ordinary diligence, such as a man of business and common prudence would exercise about his own affairs in the situation in which M was then placed.
    4. Same — Same— Duty oi Principal Creditor. — M was assignee of these collaterals, bound to use the diligence due by an assignee under the circumstances; and he was not only a principal, as being interested in the sub: ect, but he was agent of F to the extent of his interest, and bound to perform the duty pertaining to such agency. The duty of ’’’M was to realize as much as possible out of the collaterals at the earliest practicable period; and he was invested with all the powers necessary or proper to enable him to attain that object.
    5. Same — Same—Same.—The first thing to be considered by M was the security of the collaterals, and the next their collection. If a debt were good, he should sue; if doubtful, he might give time and get security: if it was good policy not to sue, he might decline it, and might compound or compromise a debt, if, looking to the interest of the creditor, in the exercise of a sound discretion, that was deemed best: and new securities taken by M might properly be in Ms own name.
    6. Same — Same—Same—Advice by Counsel. — In determining whether it would be good policy to sue for a debt, or give time on getting security, or to accept a compromise, the fact that M acted under the advice of and upon information derived from his counsel, affords at least pritna facie evidence that such action was bona fide and proper.
    In May, 1852, Miller & Mayhew, late merchants residing' in Baltimore, instituted a suit of foreign attachment in the Circuit court of Essex, to attach a debt alleged to be due by %. S. Parland to E. R. Eant, by the name of E. L. Pant & Co., to satisfy a debt alleged to be due by said Pant-& Co. to said Miller & Mayhew. It turned out that the debt of Earland had been assigned to Wm. E. Phillips, and the attachment therefore failed of effect. But out of that suit arose a cross-suit, which has been productive of a long and troublesome litigation between the parties,' the general outlines of which will be now stated. ,
    Pant in his cross-bill filed in April, 1854, while he admits the execution of the note of E. R. Pant & Co. to Miller & Mayhew claimed in the original bill, yet denies that it is still due, but on the contrary avers that upon a full and fair settlement with said Miller & Mayhew of all their transactions with him, they are largely indebted to him. He avers that before and after .the execution of the said note he had many transactions with them, and *that, under an arrangement with and promise by them to make to him large advances to enable him to carry on his business as a merchant in the city of Baltimore, he was induced by them, on or about the 28th day of May, 1850, to assign to them bonds, notes and other claims, due or to become due to him, to the amount of $69,760.92, a list of which is filed with the bill; that after the said assignment they refused to make all the advances which they had promised to make, although the assignment thus made to them was amply sufficient to indemnify them, and beyond the amount promised to be made to them; that he had frequently urged them to come to a settlement with him, and render an account of the claims assigned to them as aforesaid, and of the amount received by them on account thereof (which he alleged was a very large sum), but they failed and refused to do so; and that he is without remedy to bring about the said settlement, and cause them to disclose and account for the claims assigned to them as aforesaid, but by the aid of the said court. • He therefore prayed that they might be made defendants to the bill, and required on oath to answer all the statements and allegations thereof, and fully disclose and show all that they had done in the premises, and further required to render before a commissioner of the court an account of all the money received by them on account of the claims aforesaid, and should be held responsible for any of them which may have been lost by their mismanagement or negligence ; and for general relief.
    In November, 1854, the defendants Miller & Mayhew filed their answer, in which, after noticing the matter involved in the original suit, they set out a history of their transactions with the plaintiff and aver that all the matters in said cross-bill not consistent with said history are false and fabricated. That history, and the other ^material denials and aver-ments of the answer, are in the words and figures following, to wit: 1 ‘Your respondents aver and answer, that in the early part of the year 1850, E. R. Pant called on your respondents for.assistance in carrying on the business of E. R. Rant & Co. From the statements by said E- E. Rant of the sound and solvent condition of E. E. Eant & Co., these respondents did indicate to E. E- Rant, that on being supplied by him with security at the rate of two dollars for one dollar, your respondents would from time to time, as they were able, afford E- E. Rant & Co. the notes of your respondents for the accommodation of E. R. Rant & Co., and other assistance. Accordingly, with this understanding, your respondents, from time to time thereafter, did make advances and afford assistance to said E- E- Rant & Co. in money, merchandise and accommodation notes, for which your respondents took the notes of E. E. Rant & Co., for the amount and due at the times stated in the book marked exhibit A (and which book your respondents pray may be taken as a part of their answer), amounting to $34,147.39, exclusive of expenses, and with expenses amounting to $35,137.57, and with estimated balance of interest up to November 1st, 1854, amounting to $37,437.55. Whilst these advances and aid were being rendered as aforesaid by your respondents unto the said E. R. Rant & Co., said E. R. Rant & Co. did place in the hands of your respondents, as collateral security, from time to time, the notes and accounts of the customers of E. E. Rant & Co., amounting in the aggregate to $69,516.12, as described, both as to their particular amounts and the dates, in the second account in book marked exhibit A, and which your respondents pray may be taken as a part of their answer. And your respondents aver, that they fully complied with all their intimations or engagements to or with E. E. Rant & Co. ; *but, on the other hand, said E- R. Rant & Co. have acted most deceptively and fraudulently to your respondent; for said E. R. Rant & Co., after having thus placed with your respondents the collaterals as aforesaid, did, both before and after the suspension of E. L: Rant & Co., proceed to collect from some of the debtors on these collaterals, without the knowledge or assent of your respondents, to a very large amount. All said fraudulent collections will be found marked in red ink, “collected by E. R. Rant & Co.” opposite to the respective debts in said account No. 2 on said exhibit A. Your respondents had not given notice of the assignment of these collaterals to any of these debtors on the assigned collaterals until after the suspension of E. E. Rant & Co., as it is never the usage to do so, for fear of its damage to the credit of E- E. Rant & Co. ; and your respondents were astounded to find, on notifying said debtors after the suspension of E. E. Rant & Co., that said E- E- Rant & Co. had collected, as above stated, and in many instances 'in which your respondents were holders of the bonds of said debtors, and are now holders of the same, that said E. R. Rant & Co. had received in whole or in part from such debtors, and had given the receipt of E- E- Rant & Co. for the amount paid and thus fraudulently collected. And your respondents also aver, that six of the accounts which had been lodged with your respondents among said collaterals, amounting to $1,059.43, were claimed by William R. Phillips, the uncle of said Rant, as having been assigned to him by said E. R. Rant & Co. And your respondents aver, that in consequence of said fraudulent conduct of said E. R. Rant & Co., there is now due and unpaid to your respondents $11,732.67, inclusive of estimated interest up to the 1st of November, 1854, which your respondents have every reason to believe will prove nearly *a total loss. And your respondents aver, that account No. 1 and 2, in book marked exhibit A, contains a true and accurate account of their claims against said E. E. Rant & Co., and of the collaterals so as aforesaid deposited and assigned to them by E. E. Rant & Co., and of the receipt from the.same, and of the condition of each account ; and when any note or bond has been placed and is still in the hands of an attorney for collection, the names of said áttor-neys will be found in black ink on the line containing the amount of each claim; and as an evidence of the diligence and energy with which said collaterals have been prosecuted, your respondents aver, that they have written over six hundred letters to debtors or attorneys connected with these collaterals, and they deny that any claim of these collaterals has been lost, in whole or in part, by any mismanagement or neglect of your respondents. And your respondents aver, that they have never been unwilling to come to any settlement with E. E. Rant & Co., though they admit that E. E. Rant did write to them for the accounts, and 3'our respondents took no notice thereof, .because, having discovered the fraudulent conduct of E. R. Rant & Co. in collecting these collaterals, they apprehended that the whole purpose of the inquiry was to enable him to perpetrate some further injury on their just rights. And your respondents are now gratified to be able, in a court of justice, to render a full account of their transactions with said EE. Rant & Co., and to display , the frauds practiced on them by said E. R. Rant & Co.” &c.
    A few days after the filing of the answer, to wit: on the 15th day of November, 1854, the cause came on to be heard on the bill, answer with the replication thereto, and exhibits, and it was decreed that a commissioner of the court should take and state an account between the said Miller & Mayhew and E. E. Rant and E. R. Rant & *Co., showing the amount and nature of the bonds, bills, accounts or other evidences of debt transferred by the said Rant and Rant & Co., which have come to the possession of the said Miller & Mayhew as collateral security for the indebtedness of, and advancements made for, the said Rant or Rant & Co. to or by the said Miller & Mayhew. In settling which account, the said Miller & Mayhew were required to produce and surrender to the commissioner, to enable him to state said account, all of the said bonds &c. as aforesaid which may still remain in their possession or under their control; and to show to the commissioner what disposition had been made of such as might not be so produced ; and each party to that account, upon the requisition of the other, was required to submit to be examined on oath upon any and all matters relating to the same; which account the commissioner was directed to settle and report, with any matter specially stated, &c.
    The commissioner proceeded to execute the said decree, when, on the 12th of February, 18SS, the defendants laid before him their answer aforesaid as the evidence relied on by them of their charges against the plaintiff: whereupon the plaintiff’s counsel excepted to the said answer as evidence, upon the ground of its not being responsive to the charges in the bill. The case having been continued before the commissioner, the plaintiff took the depositions of McKew and Sprigg in the cause.
    McKew stated, that he was a clerk in the counting-room of the defendants in 1850, when, by their direction, he copied for the plaintiff a list of collaterals delivered by the plaintiff to the defendants. The copy was made from a book of the defendants, on which the collaterals were entered some time previously, and is annexed to the deposition of the witness as “plaintiff’s exhibit A.”
    Sprigg stated that he was, at the time of giving his ^deposition, and had been since the year 1835, cashier of the Merchants Bank of Baltimore; that a book filed with his deposition by the plaintiff, and marked “exhibit A,” was left at the Merchants Bank by Peabody & Co. (of which firm the plaintiff was a member) on their account in June, 1849. In October, 1849, the account was changed to the name of E. B. Fant & Co. The said book is a 1 ist of collaterals left with the said bank by the said parties as security for discounts which had been made, or were intended to be made, for said parties. On the 31st of May, 1850, an order was presented to the bank from E. E- Fant & Co. to deliver the collaterals mentioned in said exhibit A to Miller & Mayhew, when the amount for which they had been deposited as security had been paid said bank. On the 9th of September, 1850, all the collaterals then in possession of the bank (being, it seems, sixty-nine in number) were handed over to Miller & Mayhew in accordance with said order, and at the same time the note of said Miller & Mayhew for $5,000 was deposited by said E. B. Fant & Co. with the said bank, to secure it from any loss which might possibly accrue on account of said discounts, which at that time did not amount to more than $5,000. On the 24th of October, 1850, the said note was, by-order of said E. E. Fant & Co., returned to said Miller & Mayhew, the bank having then no claims against it.
    These depositions were laid by the plaintiff before the commissioner, who, having excluded the answer as evidence, proceeded to state the account upon the said depositions, made out a statement of the collat-erals with which the defendants appeared therefrom to be chargeable, including interest to the first day of January, 1855, showing an aggregate on that day of $97,114.09, and returned his report to the court on the 9th of November, 1855.
    *On the day after the return1 of this report, the defendants filed--an - exception thereto, ‘ ‘because the commissioner, in stating the account, rejected as testimony the answer of the defendants and the exhibit filed therewith.”
    On the 29th of July, 1856, the cause came on again to be heard on the papers formerly read and the report of the commissioner, when a decree was made in effect as follows: 1 ‘It appearing to the court, from the proofs in this cause, that the debts transferred by the-plaintiff to the defendants Miller & Mayhew were transferred to them as a security, or collateral security, for indemnification of the said defendants against their advances and liabilities for the plaintiff (the said debts being spoken of by the plaintiff himself, as well as by the said defendants and the witnesses whose evidence has been taken and filed in this cause, as collaterals), and were treated by all the parties as being recognized only as collaterals, or collateral security, for the purpose above mentioned: that the transfer and acceptance of them were unaccompanied by any express stipulations for collection or otherwise, in any use to be made of them: and . that, in the absence of any stipulations in these respects, they must be regarded by the court as delivered and held only as a pledge for securing the said defendants: the rights of the plaintiff on the one hand, and the obligations of the said defendants on the other, as to the account for these collaterals, are therefore such as arise out of that -species of bailment called pledge or pignus. See Story on Bailment, ch. 5. The defendants had, as pledgees, the right to recover and receive the money due on the securities, such use of the thing pledged being obviously a use beneficial to the debtor, and of which he could have no cause to complain. But there was no obligation on -.th'e said defendants to these securities to benefit the debtor or to benefit themselves. The extent *of their obligation was to retain the pledge as it had been delivered to them; nor should they be made liable, except so far as they may have used the securities, or by gross neglect lost or destroyed them. The bill filed by the plaintiff is virtually a bill for a discovery; and the answer of the said defendants, being responsive to the bill and not excepted to, should be taken as true in regard to the matter discovered by it. At all events, it must be taken as true, unless disproved by two witnesses, or by one witness and pregnant circumstances. - There is no proof, other than what may be in the accounts exhibited, to show, on the part of the plaintiff, that there has been any such neglect or misconduct on the part of the pledgees, which should charge them for loss of any of the securities, or that any money has been received by them upon the securities, but what the answer with the,exhibits discovers. It is therefore considered by the court, that the said report of Commissioner Daingerfield filed in this cause on the 9th of November, 18SS, be recommitted to the said commissioner, with instructions to frame a further report in this cause in conformity with the foregoing view of the court, and that he make report thereof to the court, with any matters deemed pertinent,” &c.
    After the said decree was rendered and before the commissioner commenced its 'execution, to wit, in November, 1856, the defendants took the deposition of William Hawkins, who was the cashier and chief book-keeper .for the defendants during all the time the transactions between them and the plaintiff were going on, and had special charge of the collection of the collat-erals. -The defendants; in . their . first examination in chief of said witness, propounded to him but two questions; 1st, as to what disposition had been made by the defendants of twenty-three collaterals included in the sixty-nine received *by them from Sprigg but not included in the list annexed to McKew’s deposition and therefore ■ charged to the defendants, in addition to those included in that list, by the commissioner in his first report; and 2dly, as to the nature of the agreement between the. parties respecting the collaterals. The plaintiff in his cross-examination of 'the witness propounded a great many questions -to him, a nd caused many documents, referred to in that cross-examination, to be annexed to the deposition.
    The defendants took no other deposition than that of .Hawkins before the commissioner commenced the execution of the decree of the 29th day. of July, 1856, but the plaintiff took a good many, and both parties continued to take them while the said decree was in the progress of execution.
    On the 17th day of March, 1857, being a day fixed for the purpose by agreement between the counsel of the parties, the commissioner commenced the investigation and settlement of the account; it having been further -agreed between the said counsel, that no exception should be taken to the report to be made by the commissioner, on account of its not remaining ten days in his office after having been made, prior to the . next term of the court. The proceedings before the commissioner were continued from day to day until the 26th of March, 1857, when the examination of the evidence before him was. closed, -and he took time to ■ consider the same and make up his report. On the 25th of March the defendants’, counsel made an application to the commissioner for a continuance, which he refused. On the 30th day of the same month the application was renewed, and was again refused. And on the 7th of April, 1857, the application was again renewed, accompanied by an affidavit of William E. Mayhew, Jr. ; and the commissioner, deeming *the reasons given in said affidavit sufficient, granted the continuance asked for, and the further taking of the account was continued until some day to be fixed upon at the succeeding spring term .of the circuit court. To this decision of the commissioner the counsel for the plaintiff objected, and required him to report all the facts along with the account upon the evidence then before him, and also their special statements, B and C, which he accordingly did. Statement A, which presented the account according to his own views upon the evidence defore him on the 9th of April, 1857, shows a balance due from the defendants of $7,162.05 on the 1st day of January, 1857, with interest on $2,630.43 from that date.
    On the 9th day of September, 1857, on the motion of the defendants, and upop the affidavit of Dudley & Harwood their attorneys, which is stated to have been filed but is not in the record before this court, leave was granted them to retake the deposition of William Hawkins, to be completed on or before the 10th day of October, 1857, but he was not to be examined as to any matters upon which he had been examined by either party when his former deposition was taken.
    The said deposition was accordingly retaken, having been commenced on the 5th and closed on the 10th of October, 1857. It was protracted to very great length, and with the exhibits filed with it, occupies one hundred and seventy-seven pages of the printed record.- Many exceptions were taken by.the plaintiff in progress of retaking it; chiefly upon the ground that matters to which questions propounded by the defendants referred were not embraced in the order of court authorizing the deposition to be retaken. All letters and papers referred to by the witness and filed with his deposition, pf which there were a great many (except such as were made evidence *by being called for by.the plaintiff), were also excepted to.
    Many other depositions were taken by the parties, both before and after the retaking of the deposition of Hawkins, though most of the depositions on the part of the plaintiff were taken before that time. The plaintiff excepted to many of the defendants’ depositions, chiefly on the ground of the insufficiency of the notice under which they were taken.
    On the 9th of November, 1857, the commissioner made his report, presenting the account' according to his own views in statement A, according to the defendants’ in statement B, and according, to the plaintiff’s in statement C. Statement A showed a balance due the plaintiff, on the 1st of October, 1857, of $4,756.53, of which $4,441.38 was principal. Statement C showed a much larger balance due the plaintiff, while statement B showed a large balance due the defendants.
    Both parties excepted to the report. The exceptions of the plaintiff were twenty in number; those of the defendants were twenty-two. They were set out by the judge in giving an opinion upon them.
    On the 24th of April, 1858, the cause came on again to be heard, on the papers formerly read, the depositions of witnesses, the exhibits filed, and the said report and exceptions; when the court sustained some of the exceptions on both sides, and overruled the rest, and recommitted so much of the report and account as was not confirmed to the commissioner, with instructions to reform the same according to the opinion of the court, and make report forthwith.
    On the same day the commissioner made and returned his reformed report, to which the plaintiff excepted.
    On the 28th of April, 1858, a petition was filed by the plaintiff, representing that he had been informed and believed *that the defendants had become insolvent, and praying that they might be injoined from making any further collections on account of the collaterals, and required to account for what they had received and not already accounted for; and that a receiver might be appointed to collect any sums still remaining due on said collaterals, and hold the same subject to the order of the court.
    On the same day the cause came on again to be heard on the papers formerly read and the report of the commissioner made in pursuance of the decree of the 24th of the month, with the exceptions thereto and the petition aforesaid, when the court made a decree recommitting the said report with the said exceptions to the commissioner to correct the same if erroneous; directing the defendants to render, under oath, before the commissioner, a further account, showing any and all sums of money received by them since the 4th day of August, 1857 (to which day they had already accounted), upon any of the collaterals aforesaid, and also showing the present condition, amount and description of all the collaterals, with all changes and transfers thereof, w'hich have not been surrendered or accounted for under the decree of the 29th of July, 1856; to surrender, under oath, to C. G. Griswold, who was thereby appointed receiver of the court for that purpose, such of ;the said collaterals as might then remain in their hands or under their control; and to transfer and assign to the said receiver any and all such collaterals as might have been so changed as to be then payable to the said defendants, and any and all judgments which might be pending upon any of the said collaterals in the name of or for the benefit of the defendants; injoining the said defendants from making any further collections, and all other persons from paying to them, or any person for them, any ^further sums on account of any of the said collaterals; and directing the receiver to collect and receive all sums w'hich might still remain due upon any of the said collaterals, and hold the same, when collected, subject to the future order of the court, and to render an account and make report of his proceedings to the court.
    On the 9th of November, 1858, the plaintiff filed a petition for a rehearing, and to set aside the decrees of the 24th and 28th of April, 1858.
    On the 10th of November, 1858, the receiver made a report of his proceedings to the court.
    On the 11th of November, 1858, the commissioner made a report in pursuance of the decree of the 28th of April, 1858, correcting his former report according to the exceptions thereto w'hich he ascertained to be well founded, and referring to papers filed with him and returned with his report; being, first, a statement of the defendants under oath, of the condition, &c. of the collaterals remaining in their hands or under their control, &c. as required by the said decree of the 28th of April, 1858, and that they had not received any money on account of any of the collaterals since the 4th day of August, 1857; secondly, the receipt of the receiver for the collaterals transferred to him by the defendants under the said decree; and thirdly, a statement of expenses paid by them in collecting the collaterals, there being no evidence before the commissioner (as he reports) to sustain this account. To the first mentioned statement exceptions were taken by the plaintiff.
    On the 29th of April, 1859, the cause came on again to be heard on the papers formerly read, upon the report of the commissioner under the decree of the 28th of April, 1858, and the report of the receiver, to which reports there was no exception, upon the report and statement of the defendants made in pursuance of said decree, *W'ith the exceptions thereto, and upon the petition of the plaintiff for a rehearing, together with an exhibit filed by the plaintiff on the 23d of April, 1859; and a final decree was rendered, overruling the said exceptions, rejecting the said petition for a rehearing, confirming the said reports, directing the plaintiff to pay to the defendants the sum of $652.48 (without interest, the same being itself interest), being the balance due to them according to the" said report of the commissioner, and their costs of suit, directing the clerk of the court to deliver to the receiver all of the collaterals uncollected and surrendered by the defendants to the' commissioner and returned with his report, directing the receiver, out of any money realized by him from any of the collaterals in his hands, after deducting all proper charges against the same, if sufficient therefor, to pay to the defendants the sum above decreed to them and their costs, and to pay the surplus, if any, to the plaintiff, and reserving leave to any of the parties to apply to the court, upon the foot of said decree, for any order or direction which might be proper with reference to the said collaterals and to the action of the feceiver in relation thereto.
    
      Fant applied for and obtained an appeal from the decrees made in the. cause.
    Griswold for the appellant.
    There was no counsel for the appellees.
    
      
      Chancery Practice — Answer — Evidence- Weight.— The proposition laid down In the principal case, that, where the answer is responsive to the bill, It is to be taker as true unless it is contradicted by two witnesses or by one witness and corroberat-ing circumstances, has been approved by several subsequent cases. See Morrison v. Grubb, 23 Gratt. 350; Corbin v. Mills, 19 Gratt. 438; Shurtz v. Johnson, 28 Gratt. 663, and footnote; Schultz v. Hansbrough, 33 Gratt. 581; Bell v. Moon, 79 Va. 349; Batchelder v. White, 80 Va. 109.
      In Jones v. Abraham, 75 Va. 469, the court said; “The charge is denied by Abraham in his answer.’ To the extent of the denial, the answer is responsive and is so far evidence for the respondent. This is so, although the bill does not call for an answer, but expressly waives it; for, where a bill is filed for relief, the complainant, according to the equity practice, cannot, by disclaiming the benefit of a discovery, deprive the defendant of the right to answer on oath and have the advantage of such answer as evidence in his favor, so far as it is responsive. Such is the settled rule in this state. Thornton v. Gordon, 2Rob. 719; Font v. Miller & Mayhem, 17 Gratt. 187, 206'.”
      But see Va. Code, § 3281 (Acts 1883, ’84, p. 35), as to the effect of answer as evidence when the bill waives answer under oath.
      
    
    
      
      Same — Answer Partly False — Effect.—In Brough-ton v. Coffer, 18 Gratt. 196, the court said: “The fact that the answer was proved to be false as to the quantity of land embraced in the original parol contract, did not destroy the weight ascribed to it by law, in respect to other matters, as to which It was not disproved by the requisite amount of evidence. Fantv. Miller <6 Mayhew. 17 Gratt. 187."
      
      See also, the principal case approved as to this point in Powell v. Manson, 22 Gratt. 189.
    
    
      
      Same — Bill of Discovery — Answer.—Several subsequent cases approved the proposition of the principal case that where a cause Is retained, which is brought in equity on the sole ground of discovery, it acts as a substitute for the court of law, and the complainant cannot contradict the answer, as to matters discovered by it in response to the prayer of the bill, by other evidence as he would thereby prove himself ont of court. See Thompson v. Clark, 81 Va. 427; Smith v. Smith, 92 Va. 698, 24 S. E. Rep. 280.
      See monographic note on “Answers, in Equity Pleading” appended to Tate v. Vance, 27 Gratt. 571.
    
    
      
       Commissioners in Chancery — Continuances—Discretionary. — See the proposition laid down in the 5th head-note approved in Atwood v. Shenandoah V. K. R. Co., 85 Va. 975, 9 S. E. Rep. 748.
      
      See generally, monographic note on “Commissioners in Chancery” appended to whitehead v. Whitehead, 23 Gratt. 376.
      See generally, monographic note on “Continuances” appended to Harman v. Howe, 27 Gratt. 676.
    
    
      
      Witnesses — Re-Examination.—In Burke v. Shaver, 92 Va. 352, 23 S. E. Rep. 749, the court said; “The subject of the examination of witnesses, says this court, in Brooks v. wiJcox, 11 Gratt. 411, lies chiefly in the discretion of the court in which the cause is tried, and its exercise is rarely, if ever, to be controlled by an appellate court. Again, in Fant v. Miller, 17 Gratt. 187, this court says: ‘Unless it is palpably improper to grant leave for the second examination of a witness, an appellate court will not, for this cause, reverse the decree, as the circuit court ought to possess much latitude of discretion in the decision of such questions.’ In the light of this authority, this assignment of error cannot be •sustained.”
      The principal case was also approved as to this point in Carter v. Edmonds, 80 Va. 63; Atwood v. Shenandoah V. R. R. Co., 85 Va. 976, 9 S. E. Rep. 748; Myers v. Trice, 86 Va. 838,11 S. E. Rep. 428, and cases there collected; Hoopes v. Devaughn, 43 W. Va. 454, •27 S. E.-Rep. 254.
    
    
      
       Depositions — Opportunity of Party to Be Present— •Notice. — See Latham- v. Latham, 30 Gratt. 340, -and foot-note; Wise v. Postlewait, 3 W. Va. 459.
    
    
      
      Same — Exceptions to — Waived—Appellate Practice. — In Vanscoy v. Stinchcomb, 29 W. Va. 271,11 S. E. Rep. 930, the court said : “If it were true, as claimed, that the objections to the reading of the depositions were valid, they have all been waived by the appellant except those objections, if there be any, based on the incompetency of the witness in the court below to testify as to certain matters testified to by him. The exceptions taken to these depositions noticed in the statement of this case were, so far as the record shows, never called to the attention of the court below, nornQticed by any decree rendered by the court; and, with the exception of those based on the incompetency of the witness to testify to the matter objected to, all these exceptions of the appellant must, in this court, be considered as having been waived by the appellant, and the other defendants in the court below, and ' cannot now be raised or relied on in this court. This ik the well-settled law both in Virginia and in ‘this state.' Pant v. Miller, 17 Gratt. 187 ; Hill v. Proctor, 10 Nv. Va. 78. The law, as laid down and followed both in Virginia and West Virginia, is as follows: ‘An exception to a deposition, whether indorsed on it or taken and entered on its face in the process of taking it, or written on a separate paper and filed in the cause (except upon the ground of incomptency, in which case no exception is necessary), not having been brought to the notice of the court below, or passed upon by the court, ought to be considered as having been waived, and cannot be noticed by the appellate court; and a general judgment or decree of the court below against the party making the objection cannot be considered as invoking a decision upon the exceptions.’” See, in accord with the opinion above expressed, Statham v. Ferguson, 25 Gratt. 38; Dickinson v. Clarke, 5 W. Va. 282; Middleton v. White, 5 W. Va. 574; in all of which, the principal case is cited as authority.
      But, in Simmons v. Simmons, 33 Gratt. 460, the court said: “It would seem to be a sufficient answer to this objection, that it does not appear that it was first made in the court below. Notwithstanding some expressions in decided cases, which seem to concede that objections to the testimony of a witness on the grounds of his incompetency may beproperly made in this court although not made, or considered, or passed upon in the court below, we are of opinion, that such objections, unless first made in the court below, cannot be relied on here, for the reason that if allowed, parties might be taken by surprise. If made in the court of original jurisdiction : First. The incompetency might in some cases be removed by release or otherwise; Second. If not removed and the witness be excluded, the loss of his testimony might perhaps be supplied by other evidence. See what was said by Jtjdgjs Monctjre in Want v. Miller <& Mayhew, 17 Gratt, 187. Also, Beverley v Brooke & als., 2 Leigh 425; Hord’s adm’r v. Colbert & als., 28 Gratt. 49, 54, 55, 56; Statham & als. y. Ferguson’s adm’r & als., 25 Gratt. 28,38.”
      And in McVeigh v. Chamberlain, 94 Va. 78, 36 S. E. Rep. S95, the court said: “Under the decisions of this court, an exception taken to a deposition on the ground of the inoonwetency of the witness or for other cause, if not brought to the attention of the court below at the hearing, will be taken by the appellate court to have been waived. Want a. Miller & Mayhem, 17 Gratt. 227-228; Simmons v. Simmons’ adm’r, 33 Gratt. 460-61; and Martin et als. v. South Salem Land Co., ante, p. 38.”
      See also, Leonard v. Smith, 34 W. Va. 448, 13 S. E. Rep. 481, and foot-note to Statham v. Ferguson, 35 Gratt. 28.
      See generally, monographic note on “Depositions” appended to Field v. Brown, 24 Gratt. 74.
    
   MONCURE, J.,

delivered the opinion of the court. After stating' the case he proceeded :

The plaintiff prayed for and obtained an appeal from the decrees made in the cause, or such of them as he complained of in his petition, assigning many errors therein, which we will proceed to consider. *And first he complains of the decree of July 29th, 1856, as erroneous in several respects, as first in sustaining the exception of the defendants to the commissioner’s report; second, in deciding that the bill- of the plaintiff was a bill of discovery; and third, in regard to the principles ■ and extent of the liability of the defendants for the collaterals which went into their hands, as declared by the court.

The exception to the commissioner’s report .was that in statirig the account he rejected as testimony, the answers, of the defendants and the exhibit filed therewith. There is nothing better settled .than that where the answer is responsive to the bill, it is to be taken as true, unless it be contradicted by two witnesses or by one witness and corroborating circumstances. 2 Tuck; Com. book 3, p. 502, and cases cited.. The rule is thus broadly laid down by Story: “In every case the answer of the defendant to a bill filed against him upon any matter stated in the bill and responsive to it, 'is evidence in' his own favor. Nay, the doctrine of equity goes farther, for not only is such an answer proof in favor ' of defendant, as to the matters of fact of which the bill seeks a 'disclosure from him; but it is conclusive in his favor, unless it is overcome by the satisfactory testimony of two opposing witnesses, or of one witness corroborated by other circumstances and facts, which give to it a greater weight than the answer, or which are equivalent in weight to a second witness.” 2 Story’s E.q. (S1528. In the absence of such opposing testimony, the court will neither make a decree, nor send 'the case' to be 'tried at law; but will simply dismiss the bill. Id. This is strongly illustrated by two cases recently decided by this court, in each of which a decree in favor of the plaintiff in such a case was reversed, because the court below, instead, of ordering an issue, ought to have dismissed the bill. Wise v. Lamb, 9 Gratt. 294; Smith v. Betty, 11 Id. 752.

*The rule not only applies where a material allegation of the bill is denied by the answer, but also where a material disclosure is called for by the bill and made by the answer. The answer is as much responsive to the bill in the latter as in the former case, and comes as plainly within the very terms of the rule. Nor is the rule in regard to the effect of such a disclosure confined to an answer to .a bill of discovery, technically so called, or a pure bill of discovery, as it is sometimes called. As to the nature of such a bill, see McFarland v. Hunter, 8 Leigh 489, and the authorities cited; 1 Story’s Eq. H 64, 74; 2 Id. 690, 1483. Indeed the rule cannot be said to be applicable at all to such a bill, for the answer to it is conclusive, in the case at least in which it is filed, and cannot be overthrown by any amount of countervailing testimony. But every bill requiring an answer is-more or less a bill of discover}*. 1 Mad. Ch. 196. “Every bill in equity,” says Story, “may properly be deemed a bill of discovery, since it seeks a disclosure from the defendant, on his oath, of the truth of the circumstances constituting the plaintiff’s case, -as propounded in his bill.” 2 Story’s Eq. §2 689, 1483. The defendant is entitled to the benefit of his answer as evidence in the cause, if the bill be filed for relief, and the plaintiff cannot, even by expressly waiving a discovery, deprive him of it. Thornton v. Gordon, 2 Rob. R. 719, 727. Judge Allen, in his opinion in the case (in which, so far as relates to this question, the rest of the court concurred), said: “To whatever source the rule is traced, it is firmly, established as one o.f the fundamental principles of a court of equity. It is the law of the forum, and all who apply to it for relief must submit to have their cause tried according to its established modes of procedure. It would be as competent for this court .to remodel the whole doctrine of the court of ^equity in regard to pleadings and evidence, as to declare that, in this particular case, the defendant should be deprived of his answer. The cases do not confine this privilege to, answers to ((bills seeking a discovery. In truth, the rule has no application to a mere .technical bill of discovery, where no relief is prayed, but the discovery is required to be used in some trial at law: for there the plaintiff has his election to use the answer or not. The principle becomes of importance in those cases alone where an issue of fact is to be tried by the court.”. Id. 725-6.

The learned judge of the court below surely did not mean to say that the bill in this case was a pure or technical bill of discovery, but that it was a bill of discovery in a general'-sense ; dhat. is, not only a -.bill in equity, and therefore a bill of discovery, but a bill in equity calling for a discovery. In ascertaining his meaning, we must take into, view all that he said, and look at the case as it was when he made the decree. At that time there was nothing in the case but the bill, answer and replication (besides three depositions taken by the plaintiff, but not affecting the .question), and in that state of the case the answer, so far as it was responsive to the bill, was conclusive; just as much so as if the bill (had been a pure bill of discovery. “The bill filed by the plaintiff,” said the court, “is virtually a bill for discovery ; and the answer of the defendants, being responsive to the bill and not excepted to, should be taken as true in regard to the matter discovered by it. At all events, it' must be taken as true ttnless disproved by two witnesses, or by one witness and pregnant circumstances. There is no proof, other than what may be in the accounts exhibited, to show on the part of the plaintiff,” &c. In this view of the subject, there is no error or even inaccuracy in what was said by the court in regard to a bill of discovery, *and the case was expressly subjected to the operation of the rule we have been considering. So that in no view has there been any error in this respect to the prejudice of the plaintiff.

The rule in question being well settled, its application to this case is very clear. The plaintiff in his bill, after stating his case, says he is “advised that he is wholly without remedy for bringing about the settlement as aforesaid, and any means of causing the said Miller & Mayhew to disclose, show and account for the notes, bonds and claimsjtransferred and assigned to them as aforesaid, without the aid of this court;” and he prays “that they shall fully disclose and show all that they have done in the premises,” and may be “required on oath to answer all the statements and allegations of the bill,” and “to settle the account and make the disclosures as aforesaid.” The answer throughout, including the exhibit filed therewith, so far as they relate to the collaterals, is responsive to the bill, and is therefore, under the rule before stated, evidence for the defendants, and conclusive, in their favor except so far as it may have been overcome by the evidence of two witnesses or of one witness and corroborating circumstances.

But it was argued by the plaintiff’s counsel, that the answer contradicts itself and is contradicted by the evidence in several material respects, and its credit as evidence was thus entirely destroyed, even when directly responsive to the bill: and 2 Tuck. Com. book 3, ch. 22, p. 503, and East India Co. v. Donald, 9 Ves. R. 275, are relied on to sustain the argument.

Very little evidence had been taken on either side when the decree of the 29th of July, 1856, was rendered, and the correctness of that decree when rendered cannot depend upon the evidence afterwards taken. But as that after evidence might affect the weight of the answer as ^evidence before the commissioner in taking the account under that decree, we will consider in this place how far the answer is affected by any evidence taken in the cause.

The passage referred to in Tucker’s Com. is in these words: “Where the answer is contradicted in any one or more important particulars by adequate evidence (i. e.. two witnesses or one and corroborating circumstances), it is deprived, in all other respects, of that weight which is allowed to answers by the rules of a court of equity: for, being falsified in one thing, no confidence can be placed in it as to others; according to the maxim, falsum in uno, falsum in omnibus. And the answer may in itself contain the circumstances giving greater credit to the testimony of the single witness (9 Yes. R. 275 ; 2 John. Ch. R. 94) ; or destroying its own credibility; as where it is plainly contradictory in itself.”

. Certainly the learned author did not mean to say that a mere contradiction of an answer in a material respect, either by other evidence or by itself, would wholly discredit the answer in all other respects as evidence in the cause. The most he could have intended to say was, that if any part of the answer is proved or shown to be wilfully false, the whole is thereby discredited and destroyed as evidence for the defendant in the cause.

But is the position true, even to that extent? The cases cited by Judge Tucker do not sustain the position to that extent, and were probably only cited in support of the latter part of the passage, that “the answer may in itself contain the circumstances giving greater credit to the testimony of the single witness,” which they fully sustain. They are the cases of The East India Co. v. Donald, 9 Ves. 275, and Hart v. Ten Eyck, 2 John. Ch. R. 62. The latter is chiefly important to show that where the defendant admits a fact charged in the bill *and insists upon a distinct fact by way of evidence, he must prove the fact so insisted on in defence. The plaintiff cannot destroy the weight of the whole answer by proving that the defendant is unworthy of credit; nor can be, indirectly, do so by proving that the answer is false in one respect, or several respects; the only effect of such proof being to destroy the weight of the answer to the extent to which it is disproved by that amount of evidence which is required by the rule in chancery. It is a general rule, applicable alike to courts of law and equity, that a party will not be permitted to produce general evidence to. discredit his own witness. 1 Phil. Ev. 308. But if a witness state facts against the interest of the party that called him, another witness may be called by the same party to disprove those facts; for such facts are evidence in the cause, and the other witness is not called directly to discredit the first, but the impeachment of his credit is incidental only, -and consequential. Id. 309; Bull. N. P. 297; Cowen & Hill’s notes to Phil. Ev. part 1, notes 535 and 536. Where a party calls a second witness to contradict a fact which his first witness has sworn to, the whole of the first testimony is not therefore to be repudiated. Id. Bradley v. Ricardo, 8 Bing. R. 57, 21 Eng. C. L. R. 220.

If it be true, however, that proof of falsehood of the answer in one or more respects destroys its weight as evidence in the cause in all, still there is no such proof in this case, either in the answer itself, or the evidence, or both combined, and at most nothing more than a mere conflict of evidence which may well be accounted for without imputing falsehood or wilful misstatement to any person.

It may be proper to notice here the difference between the effect of an answer to a technical bill of discovery and an answer to other bills in equity, as matter of evidence *for the defendant. We have seen what is its effect in the latter case, and what amount of countervailing evidence is required to overthrow it. In the former case, where the discovery is sought to be used in an action at law, the party obtaining it has his election to use it or not in the trial at law, and if used it is used as matter of evidence, the whole of which is to be read as the testimony of a witness, including not only admissions against the interest of the respondent, but all assertions in his favor, subject, however, to be credited or discredited, in whole or in part, by the court or jury, according to its own intrinsic weight, or its relative weight in comparison or connection with the other evidence in the action at law. In such a case the chancery cause terminates “with the discovery obtained or the failure to obtain it” (Lyons v. Miller, 6 Gratt. 427, 438); and of course the answer is conclusive in the court of chancery. In England, where discovery is the only ground of equity jurisdiction in a case, generally relief is hot prayed by the bill, but the discovery is sought to be used in an action at law. “With us the general rule is the other way, the court of equity retaining the cause after the discovery is obtained, and proceeding to give the proper relief founded upon it; instead of turning the parties over to a common law tribunal in order that the answer may be used as evidence there.” Id. Where the court of equity retains the cause and proceeds to give the proper relief, it acts as a substitute for the court of law; and gives the same effect to the answer that would be given to it in that cour.t. Id. It would seem, however, with this difference,' that-in the court of equity, the only ground of jurisdiction being the necessity for a discovery, the plaintiff cannot contradict the answer by other evidence, as he would thereby prove himself out of court. But in other respects the .effect would be the same in each forum. In t;he present case a court of equity *has jurisdiction independently of the ground of discovery, and the effect of the answer as evidence for the defendants is therefore governed by the ordinary rule of equity in such a case; but if it were governed by the rule which applies to a technical bill of discovery, as laid down in Lyons v. Miller, supra, the result in this case would, we believe, be precisely the same.

The principles declared by a majority of the judges who decided the case of Mertens v. Nottebohms, 4 Gratt. 163, would give to the account given by the defendants in their answer, in regard to the collaterals placed in their hands by the plaintiff, the effect of prima facie evidence of its correctness, independently of the rules before referred to. It was there held that an account of sales rendered by a consignee to a consignor is prima facie evidence of its correctness. “I take it to be correct as a general proposition,” said Judge Baldwin, “that in the case of a factor, agent, trustee or executor, whose duty it is by law or by contract, to sell and account for the proceeds of goods in his hands, and who makes a dpe return of his sales to the proper person or the proper custody, he may rely upon the same as prima facie evidence in his favor; inasmuch as he is bound not only to sell, but to keep and render an account of his sales. It is for the benefit of persons interested in the proceeds that this duty should be performed, and when performed it is unreasonable that they should have the power of rendering it wholly nugatory, and throw upon the agent, &c., the task of furnishing evidence in relation to the transaction, which ma3r involve minute details difScult of proof. ” Id. 168. The views of Cabell) P., were to the same effect. Id. 175. The application of these principles to this case would, we believe, conduct us to the same result to which we are brought by the application of the ordinary rule of equity before referred to.

*And now in regard to the principles and extent of the ' liability of the defendants for the collaterals which went into their hands, as declared by the court in the decree of July 29th, 1856.

There was no written agreement between the plaintiff and defendants setting out the duties and obligations assumed by the latter in regard to these collaterals, nor were those duties and obligations the subject of any express parol agreement between the parties. The only written evidence of the terms on which the collaterals were placed in the hands of the defendants consists of two papers filed in the cause, one as exhibit W filed with Hawkins’ first deposition, being a statement of four notes of $2,500 each, discounted by the defendants for the plaintiff on the 31st of May," 1850, under which is written a receipt-signed by the defendant in these words: “As collateral security for the payment of the above described notes, and also other notes that we hold, we have received of Messrs. E. L. Eant & Co. bills receivable and open accounts which are recorded in two books in our possession, a statement of which they have;” and the other, as exhibit L filed with the deposition of John W. Ball, being a receipt signed by the plaintiff in the name of E. L. Eant & Co. in these words: “Received, Baltimore, June 4th, 1850, of Miller & May-hew, $2,095.28, being the proceeds of my two notes in our favor for $1,500 each, dated May 4 and 9, at seven months, discounted by them for our use, for the security of which I have placed in their hands collateral security, a copy of which we have. In consideration of the facilities granted by them, they are to hold the said securities or the proceeds thereof, for the payment of all notes," open accounts, borrowed money now due them, or to fall due, or any that they’ may hereafter hold. ” A nd yet those papers, together with the evidence which the record ^affords of the relation of the parties to, and their dealings with, each other, and of the usages among merchants in such cases, leave no room for doubt as to what were the rights, duties, and obligations of the parties in regard to the collaterals. Both parties were dry goods merchants in Baltimore. The defendants were wholesale dealers, and the plaintiff was a jobber, extensively engaged in selling goods to retail merchants throughout the surrounding country. He had little or no capital, and for the purpose of continuing to carry on his business, made an arrangement with the defendants to obtain accommodations from them from time to time, in the form of loans and discounts and sales of goods, on the terms of placing the bonds, notes and accounts of his customers in their hands as collateral security. So long as he continued to carry on his business, it was not expected or intended that the defendants were to do more than continue to hold the credits thus placed in their hands, as collateral security, receiving the amount of such as might from time to time be paid to them, but taking no steps to enforce such payment, nor even to notify the collateral debtors of the assignment of their debts. To have taken such steps would have injured the credit of the plaintiff and defeated the object which he had in view. Collections or renewals of the collaterals during that period, as they might become necessary or convenient or proper, were no doubt intended to be made through the agency, of the plaintiff, upon his paying or delivering to the defendants the money collected or the renewed notes, or substituting other and equally good notes for any that might be withdrawn for the purpose of collection or renewal. It could not have been intended that the plaintiff should be authorized to collect, or renew, or otherwise deal with the collaterals, on any other terms than as aforesaid; for the existence of such an authority would *have been destructive of the security, and made the transaction nothing more than a contract founded on the personal credit of the plaintiff. To be sure, the defendants, by not giving to the collateral debtors due notice of the assignment of their debts, incurred the jrisk of loss by means of the plaintiff’s collecting such debts and appropriating the same to his own use without accounting to them therefor, but they could not have intended to authorize him to do so. The plaintiff says that after May, 1850, when the arrangement was made with the defendants and most of the collaterals were placed in their hands, he placed other col-laterals in their hands to a large amount, which much more than covered the whole amount of his collections. But it does not appear that any of those other collaterals were placed in the defendants’ hands on any other account than as security for new loans and discounts, which were from time to time made by the defendants for the plaintiff, or as substitutes for notes from time to time withdrawn by him from their hands. It was the obvious duty of the plaintiff to collect no collateral until he had withdrawn it from the defendants’ hands, or, if he undertook to make such collection, he ought at once to have handed the amount collected to the defendants. Instead of which it appears that at the time of his failure on the 6th of November, 1850, they had in their hands collaterals to the nominal amount of about sixty-nine thousand dollars, which they were authorized to suppose were wholly due and unpaid, when in fact a large amount of them, amounting in all to about eighteen thousand dollars, had been collected b3r the plaintiff without having rendered any account thereof; and a few days before the plaintiff’s failure he was furnished by the defendants with a list of the collaterals then in their hands, embracing those which had been collected by him as aforesaid, but it does not appear that even *then he gave them any information of any of his said collections.

Such were the transactions between the parties which occurred before, and such was the state of things which existed at the time of the plaintiff’s failure. Then new rights, duties and obligations arose between them, springing from their relation to each other and the altered condition of the plaintiff. What those rights, duties and obligations were, we will now proceed to consider.

The plaintiff’s failure occurred on the 6th of November, 1850. He then owed the defendants about $34,000; and their only means of payment were the collaterals then in 'their hands, amounting nominally to $69,760.94, including fifteen, amounting to $3,096.93, which on that day and a few days before appear to have been returned to the plaintiff. What the condition of these collaterals was; what proportion and which of them were due by insolvents, or had been collected by the plaintiff, the defendants did not know. It became then their right and their duty to collect, as far and as soon as they could, all of the said collaterals remaining in their hands, apply the nett proceeds to the payment of their claim against the plaintiff, and pay him the surplus, if any: and they were bound to use due diligence in the performance of their said duty. In other words, they were bound to use common or ordinary diligence, such as a man of business and of common prudence would exercise about his own affairs in the situation in which the defendants were then placed. They were not then mere pledgees of the collaterals, but they were assignees, bound to use the diligence due by an assignee under the circumstances. They were not only principals, as being themselves interested in the subject, but they were also agents of the plaintiff to the extent of his interest, and bound to perform the duty pertaining to such agency. The object of *their duty was, to realize out of the collaterals as much as possible at the earliest practicable period; and they were invested with all the powers which were necessary or proper to enable them to attain that object. The first thing to be looked to was the security of the collaterals, and the next their collection. If a collateral was already secure, but was not paid on demand, it was their duty to bring suit upon it as early as convenient. If it was of doubtful solvency, and security could be obtained by giving reasonable time, it was their right if not their duty to give such time and obtain security. If a debtor could not, or would not, give security for his debt, and good policy required that he should not be sued, they were justifiable in not suing him. If more could be made by compounding or compromising a debt than in any other way, or if.-such a-compromise was' deemed advisable in the exercise of a sound discretion, looking to the interest of the creditor, they had a right to make such compromise. New securities taken by them in the discharge of their duties might properly be taken in their own names. In determining whether it would be good policy to bring no suit for a debt, or to give time for its payment on obtaining security, or to accept a compromise, the fact that they acted under the advice of, and upon information derived from, their counsel, affords at least prima facie evidence that such action’was bona fide and proper. They were assignees not of one debt or a few debts only, of the situation of which they had personal knowledge, but of several hundred debts due by persons living in different and distant places in four states, and when it became their duty to collect these debts they had. no knowledge whatever of the condition of the debtors, and had to depend or such information and advice as to the best course to be pursued upon the counsel they employed to make the collection. •

*There are the principles which seem properly to govern this case and to make out the duties which the defendants had to perform in regard to the collaterals. The best guaranty which could possibly have been given for the faithful performance of those duties consisted in the fact that the defendants were deeply interested in such performance. They were men of business, wide awake to their interest, and the presumption is,- they pursued it. If so, they probably did their duty. In some instances they may have had a countervailing interest which outweighed the other and swerved them from their duty; and in some, perhaps, they majr have given undue indulgence to the debtor, considering his debt to be safe. Their duty was to look not only to the safety of the debt, but to its prompt collection. It will be found, however, that, in the main, they used due diligence in the collection of the debts. They commenced writing to the debtors on the very day of the plaintiff’s failure, giving them notice of the assignment, and urging the necessity of immediate payment. They probably wrote such a letter to most, if not all, of the debtors, at or about that time, and placed the debts in the hands -of attorneys for collection as soon as convenient thereafter. And they continued to correspond with the debtors and the attorneys during the whole course of the collections, having, before the time of filing their answer, as they state therein, written over six hundred of such letters, many of which are to be found in the record.

We have applied the foregoing principles to the decision of this case, and to the extent to which they are variant from the principles declared by the decree of July 29, 1856, to which extent we consider that decree erroneous, we have thus corrected the consequences, if any, which may have resulted from such error to the prejudice of the plaintiff.

*The next error complained of is, that the court did not overrule the action of the commissioner in granting a continuance on the 1st of April, 1857, and decide the case upon his report made on the 20th of April, 1857.

A commissioner, properly, has much latitude of discretion in granting continuances of proceedings before him, and the court whose order he is executing will not overrule his action in that respect unless it be plainly erroneous. Still less will an appellate court reverse - a decree for that cause.’ If such a reversal would in any case be proper, it certainly is not in this. We think there were good- grounds for the continuance, and that it was properly granted by the commissioner. '

The next complaint is, that the court erred in granting leave to retake the deposition of William Hawkins ;■ and 2 Daniels Ch. Pr. -pp. 1150-’6, sec. 9, is cited in support -of this assignment of error.

There is greater strictness in England than in this state in permitting the deposition of a witness to be retaken, arising from the difference in the practice of the two countries in regard to the mode of taking depositions. It may however be said here as well as in England, that “the court is always desirous that the examination of witnesses should be completed as much as possible, uno actu, and that whenever it can be accomplished, no opportunity should be offered, after a witness has once signed his deposition, and turned his back upon the examiner, of tampering with him, and inducing him to retract or contradict or explain away what he has stated in his first examination upon the record. But notwithstanding this unwillingness to allow a second examination of the same witness, there are cases in which, if justice requires that a second examination of the same witnesses should take place, an order will be made to permit it.” Id. p. 1150. In the 9th section, before referred to, are collected many *cases, in which a re-examination of a witness was ordered in that country. In this case the motion to retake the deposition was founded upon the affidavits of the attorneys for the defendants, which are stated in the order to be filed, but do not appear in the record. It might therefore properly be inferred, in the absence of the affidavits, that the order was made upon good and sufficient grounds. But it otherwise plainly appears from the record, that the retaking of the deposition was proper, and indeed necessary. The case involved a great number of questions, in regard to a great variety of transactions. Several hundred collaterals had been placed by the plaintiff in the defendants’ hands, and their liability for such of these collaterals as had not been collected and credited or otherwise accounted for by the defendants to the satisfaction of the plaintiff, was the main subject of controversy in the suit. The witness Hawkins was the cashier and chief book-keeper of the defendants during all the time the transactions in regard to the collaterals were going on, and had special charge of the collection thereof. The materiality of his evidence, in the whole case and almost every step of it, was palpable. It was impossible to examine him so fully when his first deposition was taken as to render any further or other examination unnecessary. When his first deposition was taken, in November, 1856, only six depositions had been taken by the plaintiff. It was then impossible for the defendants to anticipate what other depositions would afterwards be taken by the plaintiff, or what particular liabilities he would attempt to fix upon them. Between that time and the 9th of September, 1857, when leave was granted to retake the deposition of Hawkins, twenty-four additional depositions were taken by the plaintiff, many exhibits were filed by him, the commissioner made a special report at his instance, and he filed various exceptions ^thereto ; thus developing, in these different ways, the claims he intended to assert against the defendants. They had a right to defend themselves against these claims by countervailing testimony, and the best, if not the only means of doing so was, by a re-examination of their witness Hawkins. The importance of this witness and the materiality of his evidence, even to the plaintiff, is demonstrated by the great extent of his examination on both sides, and especially on the side of the plaintiff, and the great number of exhibits filed with his depositions, derived chiefly from the books and papers of the defendants. His first deposition and exhibits filed therewith occupy forty-seven pages of the printed record, and contain answers to eleven questions propounded by the defendants, and one hundred and eighteen by the plaintiff. His second deposition and the exhibits filed therewith occupy one hundred and seventy-seven pages of the record and contain answers to eighty-one questions propounded by the defendants, and two hundred and eighteen by the plaintiff. Many, if not most, of the questions propounded by the plaintiff had nothing to do with the cross-examination of the witness, but were framed with the view of obtaining original evidence for the plaintiff. The object of the defendants in obtaining leave to re-examine the witness was, not to afford him an opportunity “to retract, or contradict, or explain away” what he had stated in his first examination, but to prove facts rendered necessary to their defence by the action of the plaintiff since the first deposition was taken, and which could not be proved by any other witness. According to the strictest construction of the rules of equity practice, there is none which forbids the re-examination of the witness under such circumstances and for such a purpose. To guard against any possible abuse, the court in granting leave to the defendants to retake the deposition of Hawkins, ^directed that they should not examine him as to any matters upon which he had been examined by either party in the cause, and that the retaking of the deposition should be completed on or before the 10th day of October, 1857. We therefore think the court did not err in granting such leave.

Fven if this court differed from the Circuit court in regard to the propriety of granting such leave, it would not afford just ground for reversing the decree, at least unless it was palpably improper to grant such leave; as the Circuit court ought to possess much latitude of discretion in the decision of such questions.

But it is argued that even if the court properly permitted the deposition to be retaken it cannot be relied upon as evidence against the plaintiff for several reasons.

First, because the re-examination was altogether upon the same matters on which the witness was examined in taking his first deposition. Certainly this objection is not well founded, in its whole extent. The reexamination was upon many matters not involved in the first, even if it can be said that any of the matters to which the re-examination'relates were matters upon which he had been previously examined, within the meaning of the order. It is believed that none of the many interrogatories propounded to the witness in taking his first deposition were repropounded to him, at least by the defendants, in taking his second deposition; and that no interrogatory propounded to him by the defendants in taking his second deposition was intended by them, or in any manner tended to induce him to alter, retract, contradict, or explain away, anything that he had stated on his first examination: and thus the chief, if not the only, object which the court had in view in the guarded terms of the order, has in fact been attained. At all events we think that the limitation imposed on the defendants in retaking *the deposition, should not have exceeded that extent. In any other view it would be difficult for this court to compare the deposition, and determine how far and in what respects they can be said to be upon the same matters. All the matters involved in the suit are perhaps dependent upon some common principle or facts as to which they may, in a general sense, be said to be the same matters. The defendants seem to have acted bona fide in retaking the deposition of their chief witness. When they filed their answer and exhibit, which were evidence in their favor, they were ready for trial. The plaintiff took some evidence in opposition to the answer, which made it necessary for the defendants to take the first deposition of Hawkins; when they were again ready for trial. The plaintiff then took and exhibited a great deal more evidence, which made it necessary for the defendants to retake the deposition of Hawkins; in doing which it was difficult from the very nature of the cases to avoid occupying to some extent the same ground which had been occupied in taking the first deposition. The plaintiff observed no limits in his re-examination of this witness, and it was but fair and reasonable that the defendants should be equally free from restraint, taking care, however, as they did, not to ask any question with a view, or tending to induce the witness to alter, retract, contradict or explain away, anything stated by him on his former examination.

Secondly — Because he could not testify on his own memory, without the aid of his memoranda. “A witness may be permitted to use such short notes as he brings with him to refresh his memory, but not the substance of his deposition; nor may he transcribe such notes verbatim.” Thus the law is laid down in 2 Dan. Ch. Pr. 1062. A witness ought not to write his deposition or his answers beforehand, nor ought they to be written for *him beforehand by counsel or any other person, but he ought to answer the questions orally and from memory as they are propounded to him. Parties or their counsel may, orally or bj' writing, previous to his examination, direct his attention to the facts in regard to which he is intended to be examined, and he may refresh his memory in regard to such facts by examining books and papers, and make memoranda from them and otherwise, especially of dates and amounts, and use such memoranda, for the purpose only of refreshing his memory, at the time of giving his evidence. The memoranda themselves are not evidence, and, a fortiori, what he says of their contents is not, unless he remembers the facts after his memory is refreshed. The books and papers referred to may be evidence, and if so and it be desired to use them they must be produced, or secondary evidence be given of their contents after laying the proper foundation for such evidence. In this case it was necessary, from the very nature of the case, and the number and extent of the transactions involved in it, and the intimate connection of the witness with them, and the lapse of time between their occurrence and the date of the deposition (a period of seven years), that the attention of the witness should be directed to the facts as to which he was to be examined, that he should refer to the books and papers relating to them and make memoranda, and that he should use these books, papers and memo-randa in giving testimony for the purpose of refreshing his memory. It does not appear that more than this was done, except once or twice the witness in giving his answer was reading from his memoranda, when he was at once checked and the paper taken from him. The error was a common and natural one, and seems to have proceeded from mistake and not evil design. It was corrected before it created any mischief. The books and ^papers referred to were present, and the plaintiff’s counsel caused such of them as he chose to be made evidence in the case.

Thirdly — Because the witness is not to be believed; his deposition showing a strong bias against the plaintiff, and being both contradictory in itself and contradicted by other evidence in the cause.

The feelings of the witness were certainly and naturally with the defendants, and doubtless influenced him to some extent in giving his evidence. The court in weighing it, must remember his close relation to the defendants, his agency for them in attending almost exclusively to the transactions involved in the suit, and his strong desire for their success in the result. We have accordingly done so, and we find nothing in the evidence which cannot be justly and properly accounted for without attributing to the witness any intention to tell a falsehood or to suppress the truth. We could not give as much weight to his testimony as we would to that of an impartial witness, but there is certainly nothing in the record to warrant us in discrediting and disregarding it altogether. With these remarks we deem it unnecessary to review in detail all the numerous instances referred to by the counsel for the plaintiff under this head of objection to the testimony of this witness.

The remaining assignments of error relate to the exceptions to the commissioner’s report, but before we proceed to notice them in detail it will be convenient to state one or two rules of practice which have a material bearing on some of the said exceptions; and,

Hirst, in regard to a notice to take depositions on the same day at two different places so far distant, the one from the other, that the party cannot attend at both. Is such a notice sufficient, and ought not an exception taken to the depositions on that ground to be sustained? *This question has never been expressly decided by this court, but it was in effect decided in Unis and als. v. Charlton’s adm’r and als., 12 Gratt. 484, 498, in which case it was held that a deposition taken at so late a day that the other party cannot attend at the time and place of taking it, and then get to the court where the cause in which it is taken is to be tried, by the commencement of the term, is not admissible in evidence. Judge Daniel in delivering his opinion in that case, in which the other judges concurred, said: “The defendants had a right to be present at court as well as at the taking of the depositions.” But the question has been expressly decided in some of the other States. In Waters’ heirs v. Harrison and wife, 4 Bibb’s R. 87, it was held that such a notice was not good, and that the depositions taken at either place could not be used, the party to whom the notice was given having attended at neither place. Chief Justice Boyle, in delivering the opinion of the court, well remarked that a notice which precludes the party from attending to it, unless by an agent, is not reasonable. “Though the law allows a man the privilege of acting by his agent it never compels him to do so.” In Hankinson and al. v. Lombard, 25 Illinois R. 572, it was held that if a party gives notice of the taking of several depositions at different places, on the same day, so that the opposing party cannot be present to cross-examine all the witnesses, he may select which examination he will attend, and the other depositions will be suppressed. We think the principle on which these decisions rest is a sound one, viz: that a party has a right to be personally present when depositions are taken by his adversary, and that a notice which does not afford him an opportunity of being so is insufficient, and his exception to the depositions on that ground ought to be sustained. Whether the depositions taken at both places ought to be ^excluded, as was done in the case in Kentucky, or whether the party should be required to select which place he will attend, and be permitted to exclude only the depositions taken at the other place, as was done in the case in Illinois, majr be a question of doubt. But we think the latter is the better rule. When a party cannot attend both places at the same time it is no reason why he should not be required to attend either, and in giving him a right to select which of the two places he will attend, he has every advantage to which he is entitled. By making the selection he confines the notice to the place, selected, and makes it no notice at all as to the other place.

Secondly — In regard to exceptions merely taken by being endorsed on the depositions, or written on a separate piece of paper and filed in the cause, or taken and noticed on the face of the depositions in the progress of taking them, without being brought to the notice of the court below for the purpose of obtaining the judgment of the court thereon, of which exceptions a great many appear in the record in this case. There seems to have been no express decision of this court upon this question any more than upon the one we have just been considering. In Rowton v. Rowton, 1 Hen. & Mun. 94, 110, Judge Byons expresses an opinion which strongly applies to the question. “The affidavits,” he says, “although excepted to at the rules, were not objected to at the hearing, but allowed to be read, whereby the former exception was waived, and cannot now be repeated in this court.” In Beverley v. Brooke & als., 2 Leigh 425, there was an endorsement on the envelope of the deposition, in the handwriting of counsel, that he excepted to the reading of the deposition on account of the interest of the witness in the event of the cause; but it was not signed by the counsel, nor did it appear that the attention of the court *was called to the exception, or that the court decided upon it. “This would have presented a serious difficulty,” said the court, “had the deposition been taken under a general commission.” But the court was of opinion that the same difficulty did not exist in the case of a special commission, and accordingly considered the question of the competency of the witness and rejected his deposition on the ground that he was incompetent. 2 Rob. Pr. old ed., 337-8. In some of the other states the question has been expressly decided. In Scott, &c. v. Cook, &c. 4 Monr. R. 280, it was held that exceptions to depositions for want of notice and other irregularities must be called up and decided in the court below, otherwise it cannot be assigned for error that they were read. It is otherwise when the objection is for interest and incompetency to be proved by the facts in the cause. In Black v. Lamb, 1 Beasley’s R. 108, a case decided in the court of chancery of New Jersey, it was held that objections to testimony taken before the master are to be settled by the court, and if they are not renewed at the hearing, or when the depositions are acted upon by the court, they are waived. We approve the principle maintained in these cases, and are of opinion that an exception to a deposition (except upon the ground of incompetency, in which case no exception is necessary), not having been brought to the notice of the court below nor passed upon by that court, ought to be considered as having been waived, and cannot be noticed by this court; and that a general judgment or decree of the court below against the party making the exception cannot be considered as involving a decision upon the exception.

And thirdly — In regard to an exception taken by the plaintiff to the reading of any and .all letters from third persons to the defendants filed in the cause, as res inter alios acta, except such as he has made evidence b3' reading *them himself. This exception was not brought to the notice of the court below, and what has been already said on that subject will apply to it, at least to some extent, if not entirety. But in addition to that, the exception is too general. It was competent for the defendants to produce and prove letters addressed to and received by themselves from their attorneys, at least for some purposes; as for instance, to show that a claim had been put in the hands of an attorney for collection, and at what time and what advice he gave in regard to it. The sweeping objection was therefore too broad and might very property have been overruled on that ground. It ought to have specified the letters or parts of letters intended to be excepted to, instead of devolving on the court the necessity of looking over such a mass of letters to find out which of them the plaintiff had made evidence by reading them himself, and whether any, and if any, what part of the rest was admissible evidence on any other ground. ■

We will now proceed to consider the exceptions to the report of the commissioner; and first those of the plaintiff.

The judge' then considered the exceptions seriatim upon the evidence.

Decree reversed in favor of the appellee.  