The bill chamber is the department of the court in which certain summary or preliminary applications, such as suspensions, interdicts, bankrupts' petitions, and applications for warrants of diligence, are dealt with. It sits during the whole year, and during the vacation it represents the whole court. The bill chamber, says Mr. Mackey, in his excellent work on Court of Session Practice, derived its name from the fact that its original jurisdiction "consisted in the passing bills or petitions which were, in the ancient form of practice, necessary before certain summonses, letters of diligence, and letters of advocation or of suspension, were issued in the name of the sovereign, and sealed with his signet. Such preliminary bills existed at least from the date of the institution of the Court of Session, and probably had been a part of the procedure of the prior courts of the daily council and session of James I. * * *The object of bills was that private persons should not be allowed to set in motion the law and the means of execution it provided, until the crown, by the advice of the judges, was satisfied that this was necessary." The summonses for which bills were formerly required, as mentioned in the just cited passage, were (1) summonses in which the sovereign had an interest; (2) summonses for which there was no recognized style; and (3) summonses in which the ordinary citation was sought to be dispensed with. Bills were also at one time a necessary preliminary to appeals from inferior courts, but both in this case and in the case of summonses they have long ceased to be requisite. The great bulk of the work now done in the bill chamber consists of bankruptcy procedure, applications for suspensions and interdicts, and for warrants of diligence.

Of

Division of Actions. — The actions by which rights may be enforced in the Court of Session are of various kinds. The common general division is into petitory, declaratory, rescissory and possessory - the classification depending upon the conclusion, or leading conclusion, employed in the summons. course many actions contain more than one conclusion, and it is almost invariable, indeed, for a petitory or possessory conclusion to be added to a declaratory to give effect to the right which is to be declared. There are other divisions of actions, such as those into principal, and accessory, and ordinary, and extraordinary, but there is nothing peculiar in regard to these requiring notice.

The Summons.-The writ by which an ordinary

action in the Court of Session is initiated is called a summons, consisting of three parts, viz., formal summons, condescendence and pleas in law. The formal summons is a writ in the sovereign name, and is, in some respects, of antiquated form. Strictly analyzed, it is composed of four parts, viz.: (1) The address, which is in the following terms: "Victo

ria, by the grace of God, of the United Kingdom of Great Britain and Ireland, Queen, defender of the faith: To messengers-at-arms, our sheriffs in that part specially constituted, greeting." (2) The designation of parties - the pursuer and defender, respectively. (3) The conclusions, as for instance, to pay a sum of money, or to implement a contract, or to declare some right, or as the case may be. (4) The will, by which the messengers-at-arms are directed to cite the defender to appear before the court on a certain day under certification that decree will be given against him if he fail to appear. A warrant to arrest the defender's personal effects in security of payment may also at the option of the pursuer be inserted in the will of the summons in actions with petitory conclusions.

Condescendence and Pleas in Law. To the formal summons, which has just been described, there must be annexed a so-called "condescendence," which contains in substantive propositions (usually in separate articles) the allegations in fact which form the grounds of action. Prior to 1850 the statement of facts was incorporated in the summons proper, but now by statute (13 and 14 Vict., cap. 36, § 1) there must be in every case a separate condescendence. Subjoined to the condescendence there must be a statement of the pleas in law, which consist of a concise note of the legal propositions on which the pursuer founds.

The Summons.- In common parlance the three constituent parts just enumerated, viz., the formal summons, the condescendence and the pleas in law, are embraced under the general designation, the

summons.

Signeting. After the summons has been prepared it must, to use the technical phrase, “pass the signet," which means that it must be impressed with the signet or seal used for authenticating all letters of diligence in the name of the sovereign. This seal is kept in the Register House by an official appointed for the purpose, and a fee is charged for impressing The last page of the formal summons must also be signed by a writer to the signet, in testimony of the fact that it has passed the signet, and a nominal fee of half a crown may be charged (though in practice usually remitted) for such signature.'

it.

Citation. Upon the summons being signeted it is lodged with the clerk to the lord ordinary before whom the action is to be brought, and the next step is to serve a certified copy of it upon the defender, who is cited to appear in court within a certain period if he have any defenses to propone. Service may be made either by a messenger-at-arms or The days of citation are, in by registered letter. the ordinary case, seven, or where the defender is resident out of Scotland or in any of the islands, fourteen, reckoning from the date of service upon the defender.

rather lodges it with the clerk of the process for calling) in court, which means that a brief abstract of the designations of the pursuer and defender, with the name of the pursuer's agent and counsel, and also of the lord ordinary and division to which the cause shall belong (called the partibus), is printed and published on the walls of the courthouse. This calling of the cause is the first public intimation of the action being in court.

Entering Appearance. If the action is to be defended the defender enters appearance, which he must do within two days after the case has been called. Appearance is entered by the agent of the defender, simply intimating to the clerk that he appears, and giving his own and his counsel's name to be written in the partibus.

Defenses.-Thereafter defenses, which consist of answers to the pursuer's condescendence (and if a counter case is set up, a separate statement of facts) and pleas in law. The defenses must be lodged within ten days after the calling.

Printing and Enrolment. When the defenses have been lodged it is the duty of the pursuer to have the pleadings printed, and copies of the proof print transmitted to the defender's agent and the lord ordinary. Eight days are allowed for this purpose, and thereafter the case is put out in the lord ordinary's roll for adjustment of the record. The interval between the lodging of the prints and the appearance in the roll must not be less than four nor more than six days.

Closing Record.-When the case first comes before the lord ordinary he requires the parties (or their counsel) to adjust the pleadings, and at the same time pronounces an interlocutor closing the record. Parties are now at issue upon a concluded statement of their case, and it depends upon the nature of the question between them how the case shall thereafter proceed.

Proof. If the parties are at issue upon pure questions of fact, and there is no point of relevancy raised, the usual course is to order a proof to be taken before the lord ordinary himself. This order is made by the same interlocutor as closes the record, and the day of the proof is then fixed. Sometimes, indeed, disputed facts may be sent to a jury,* but except in actions of damages a proof is almost invariably the course adopted. It is in the discretion of the lord ordinary to fix the day for hearing the evidence, and he, of course, has regard to the state of his roll and convenience of other litigants. But as a rule proofs are taken within five or six weeks after the date of closing the record. The evidence at the proof is taken down in short-hand and counsel are heard at the close, and the lord ordinary thereafter either gives judgment at once or takes time to consider.

Procedure and Debate Rolls. Where the question in dispute between the litigants is one of pure law, or where a preliminary plea as to competency or

*See below as to jury trial.

relevancy is raised, the lord ordinary, when closing the record, orders the case to be enrolled in either the procedure or the debate rolls. When sent to one or other of these rolls the case will generally be heard, and judgment given within two or three weeks from the date of closing the record.

Reclaiming. After judgment has been given by the lord ordinary it is competent to appeal to the Inner House either the first or second division, as the case may be. This is done by a single note of appeal called a reclaiming note. The time within which a judgment can be reclaimed against depends upon the kind of judgment prouounced, but in the ordinary case of a final decree disposing of the whole cause on the merits, it is twenty-one days. Supposing the reclaiming note to have been competently presented, the case is sent to the Inner House roll, and is thereafter disposed of. From the date of presenting a reclaiming note till the date when the case is heard in the Inner House, an interval of about two months will, on an average, elapse, though sometimes (and particularly in the second division, where the rolls are not so crowded) it may be less than a month. For summary cases special facilities in the way of procedure exist, and the above-mentioned intervals of time may in their case be much shorter.

Jury Trials. It has been observed above that jury trials are not common in the Court of Session, and the tendency during recent years has been more and more to discourage them. On an average there will not be, it is thought, more than fifty or sixty jury trials altogether in a twelvemonth. Actions for damages for injury however, and a few other actions of a special character, are still appropriated to a jury, unless the parties consent to have them tried before the lord ordinary.

Issues. When the record is being closed, as above explained, and it appears that the action must go before a jury, an order for issues is pronounced. Thereupon issues must be lodged within the prescribed period - generally six or eight days-and these are adjusted at the sight of the lord ordinary for the trial of the cause. A day for the trial is subsequently fixed by the lord ordinary, if either party move him for that purpose, and if both parties agree he will preside at the trial. In such case the trial must take place (except on special cause shown) within three weeks of the application to fix it. It is competent however for either party to object to the trial proceeding before the lord ordinary, in which case the matter must be reported to the Inner House, and the division of the court to which the action is marked shall then determine whether the trial shall be before the lord ordinary or at the circuit or jury sittings. In the latter case the process will remain in the Inner House, and an interlocutor will be pronounced fixing the time and place of trial. The so-called jury sittings are held in the spring and autumn vacations.

or a scientific inquiry, a remit may be made to an accountant or man of skill, and his report stands in place of proof.

is thought that there is, on the whole, much greater

celerity. The expense also of an action will be found to be considerably less, though litigation in the Scotch court is by no means cheap. The total costs of an ordinary action which has been decided finally in the Inner House, and in which there has been a proof, will rarely be less than £100.

H. G.

EXECUTORS AND ADMINISTRATORS-PERSONAL DISCRETION-POWER TO SELL.

NEW JERSEY COURT OF CHANCERY, MAY, 1887.

GIBERSON V. GIBERSON.* Executors were directed to sell all of the testator's real estate "at such time and in such manner as they shall think most advisable." Held, not to vest a personal discretion in them, and that therefore an administrator de bonis non, appointed on their renunciation could exercise the power. A. G. Richey, for complainant.

BIRD, V. C. Joseph Giberson by his last will gave all the residue of his estate to his children, to be equally divided amongst them, and then ordered and directed his executors to sell all of the said estate " at such times and in such manner as they shall think most advisable." The executors therein named renounced, and an administrator with the will annexed was appointed. Doubts having been suggested as to his power to sell, this bill is presented.

In my judgment, this case is plainly within the act which confers the same powers of sale upon administrators with the will annexed that the executors had by the will. I cannot perceive that the executors had confided to them any trust or discretion such as is contemplated in the case of Naundorf v. Schumann, 14 Stew. Eq. 14, and in other cases. In the case cited the executor had power to dispose of as he should deem best. He might rent it, for he was directed to divide the profits. In this case there is nothing but the power of sale conferred. But it is thought that the discretion contemplated in Naundorf v. Schumann, supra, is distinctly expressed in the phrase "at such times and in such manner as they shall deem most advisable." I do not see any such force in the expression. I think the executors are directed to sell and nothing more. I think they have no other or greater power, right, trust or discretion than they would have had, had the words quoted been omitted. I think every executor has just so much right, power, trust or discretion when simply authorized to sell. Every such executor can sell at such times and in such manner as he deems most advisable. All will readily acknowledge that he has that much discretion, and that if he does not exercise it wisely the courts will interfere. Nor will any one insist that such admission brings the case within the principle of Naundorf v. Schumann. It is only giving practical effect to a wise provision of the statute in a case where the testator has not himself otherwise provided. And if the case I am deciding is not controlled by Naundorf v. Schumann certainly it is not by Lanning v. Sisters of St. Francis, 8 Stew. Eq. 392. In that case the trust seemed most clearly to be a personal one; the real estate was given to the person named as executor absolutely; besides which his control seemed only to terminate when he saw proper to sell and divide.

In construing the force or extent of such enabling statute, the inquirer will be aided by the views of Chief Justice Beasley as expressed in Weimar v. Fath,

*43 N. J. Eq. 116.

14 Vr. 1, 11, one quotation will suffice: "But the discretion thus appealed to is nothing but the common discretion that is made use of in the transaction of ordinary business."

I think the administrator with the will annexed can convey a good title. I will so advise.

NOTE.-The following cases show what words have been held to confer such a personal discretion on the executor that an administrator de bonis non could not execute a testamentary power to sell lands:

As soon after my death as my executor shall deem expedient, * * * either at public or private sale, and on credit or for cash, at his discretion. Mitchell v. Spence, 62 Ala. 450.

At such time or times as they or the survivor of them could do it to the best advantage, and either at public or private sale, as they or he might think best. Lockwood v. Stradley, 1 Del. Ch. 298.

At such credit and in such manner as is thought most advisable to my executor. Hall v. Irwin, 7 111. 176; see Wardwell v. McDowell, 31 id. 364; Nicoll v. Scott, 99 id. 529.

As best calculated, in their opinion, to benefit my family that is to say, in such parts or parcels, at such time or times, and upon such terms and conditions as they shall judge proper. Brown v. Hobson, 3 A. K. Marsh, 380.

To sell and convey such of testator's property as in the executor's judgment would best promote the interest of all concerned. Tainter v. Clark, 13 Meto. 220; S. C., Clark v. Tainter, 7 Cush. 567; Dunbar v. Tainter, id. 574. See also Putnam v. Story, 132 Mass. 205.

Mont

To be sold at the discretion of the executor. gomery v. Milliken, Sm. & Marsh. Ch. 435; S. C., 5 Sm. & Marsh. 151. See King v. Talbert, 36 Miss. 367.

Shall be sold at the discretion of my executors. Chambers v. Tulane, 1 Stock. 146; see Lanning v. Sisters of St. Francis, 8 Stew. Eq. 392; Weiland v. Townsend, 6 id. 399, note; Brush v. Young, 4 Dutch. 237. To sell and convey any or all of the real estate at discretion, and to keep it in repair. Stoutenburgh v. Moore, 10 Stew. Eq. 63.

The whole to be disposed of as shall to my executors seem best. Naundorf v. Schumann, 14 Stew. Eq.

14.

To sell and convey * * * in their discretion, upon trust, to divide the proceeds among the testator's four children. Cooke v. Platt, 51 N. Y. Super. Ct. 56; 98 N. Y. 45; Mott v. Ackerman, 92 id. 540; Bierbaum's case, 40 Hun, 504; see Bain v. Matteson, 54 N. Y. 663; Place's case, 7 N. Y. Leg. Obs. 217. To sell, grant and convey, * * or to lease the same for terms of years, as they in their discretion may deem best. Ross v. Barclay, 18 Penn. St. 179. To sell if they thought advisable, and to invest the proceeds for the use of certain beneficiaries. Waters v. Margerum, 60 Penn. St. 39.

*

In such parts and parcels, and at such time or times, and on such terms and in such manner as my said executors, or the survivor of them, shall in their good discretion think fit and most advantageous for the benefit of my estate. Evans v. Chew, 8 Phila. 103; 71 Penn. St. 47; see Moody v. Fulmer, 3 Grant's Cases, 17.

That the sale shall not be made by any other person than the executor himself. Drayton v. Grimke, Bail. Eq. 394.

To sell or lease or dispose of in any way they may think best for my estate. Armstrong v. Park, 9 Humph. 195.

If and whenever he may think it advisable for the interest and benefit of my children, to sell any or all of my testator's real estate, and to invest the pro

ceeds, or such part thereof as he may think right, in other real estate. Jones v. Fulghum, 3 Tenn. Ch. 193. With power to dispose of the same in such manner as to the executor should seem meet for the payment of testator's debts, and for the use and benefit of his daughter, G. B., so long as she should continue insane. Besley's case, 18 Wis. 451; see Harrup v. Winslet, 37 Ga. 655.

Devise to testator's widow to be at her disposal, if agreeable to the executors, so long as she should remain a widow, to be sold however if necessary to pay testator's debts, otherwise in remainder to his sons after the widow's death or marriage. Testator died in 1848. Neither of the executors proved the will, and letters cum testamento annexo were issued to the widow in 1851, who as devisee conveyed the premises the same year to G., swearing it was to pay testator's debts, and that the proceeds were so applied. She married again in 1853, and ejectment by the sons against her grantee was sustained. Banting v. Gummerson, 24 U. C. Q. B. 287.

The following cases show when a personal discretion is not imposed, and when an administrator de bonis non may sell lands under a testamentary power given to the executor:

If and when they or he shall think it so to do for the purpose of division or distribution. Wyman v. Carter, L. R., 12 Eq. 309; see Yates v. Compton, 2 P. Wms. 308; Austin v. Martin, 29 Beav. 523; Monsell v. Armstrong, L. R., 14 Eq. 423; In re Clay, L. R., 16 Ch. Div. 3.

For such considerations, upon such terms, and in such manner as the executors might judge best. Stuart v. Baldwin, 41 U. C. Q. B. 446.

"That the purchase-money be secured by such personal security as my executor may direct." Anderson v. McGowan, 45 Ala. 462.

That the estate, real and personal, remain in the hands of his wife (the executrix)" to rear and educate his three children, and to remain hers during her life-time or widowhood; and in case of her marriage, that the estate be sold and the proceeds divided equally among her and the three children." Watson v. Martin, 75 Ala. 506.

To sell certain lands in one year after testator's decease, "and to divide the avails so that my said daughter shall receive one-fourth thereof." Pratt v. Stewart, 49 Conn. 339.

"Which I desire may be sold at such credit as he may judge right between the creditors and the estate." Owens v. Cowan, 7 B. Monr. 152.

Where testator directed a division of his estate among his children at the death of his wife, to be made by his exccutors, either by a division of the property in kind, or a sale and division of the proceeds, in the discretion of the executors. Shields v. Smith, 8 Bush, 601; see Gulley v. Prather, 7 id. 167.

"To sell or lease for such term or terms of years, renewable or not renewable, as they may think proper, the whole or any part thereof, either at public or private sale, if they shall deem such sale or lease beneficial or advantageous to the parties interested." Druid Park Heights Co. v. Oettinger, 55 Md. 46; see Keplinger v. Maccubbin, 58 id. 203.

To divide into seven equal parts * * * and sell the same at such time and on such terms as he may think fit. Dilworth v. Rice, 48 Mo. 124; Evans v. Blakiston, 66 id. 437; see Compton v. McMahan, 19 Mo. App. 494.

In order to make an equal division among testator's grandchildren. Howell v. Sebring, 1 McCart. 84. To sell at private or public sale, as to them may seem most discreet, with similar power in their sucFish v. Coster, 28 Hun, 64.

cessor.

After the death of M. all the lands to be sold and

the proceeds divided equally among testator's children. Smith v. McCrary, Ired. Eq. 204.

For any price or prices which to them shall seem meet, by public or private sale. Meredith's Estate, Pars. Eq. Cas. 433.

To sell a house devised to testator's wife, if she should so desire, and the executors deem it for the best interest of the wife and children. Lautz v. Boyer, 81 Penn. St. 325.

To lease, according to their discretion, and to sell and convey in such manner as they shall think proper, either at public or private sale. Jackman v. Delafield, 85 Penn. St. 381; see Commonwealth v. Forney, 3 Watts & Serg. 353.

To sell the said house and lot, and invest the proceeds in such security as the executor may consider best, holding the same in trust for S. Probate Court v. Hazard, 13 R. I. 3. (This case went off on another point, vide p. 7.)

If necessary, or if they think best, to sell a part or any portion of the lands given to R. Dougherty v. Crawford, 14 S. C. 628.

The proceeds of sale, after paying debts, etc., to be disposed of as follows: One-fifth to be set apart in the executor's hands and held by him subject to the trusts, etc., named in a certain item of the will. Harrison v. Henderson, 7 Heisk. 315, 350; but see Brush v. Young, 4 Dutch. 237.

For the purpose of paying debts and supporting testator's children. Caruthers v. Caruthers, 2 Lea, 264.

Provided the said land will sell for as much as in their judgment will be equal to its value. Brown v. Armistead, 6 Rand. 594.

"Whenever my executors think best." Mosby v. Mosby, 9 Gratt. 584.

The court cannot appoint an administrator merely for the purpose of executing a deed for lands sold by his predecessor. Long v. Joplin Mining Co., 68 Mo. 422. Nor to correct a mistake in such deed. Grayson v. Weddle, 63 Mo. 523. Nor can an administrator with the will annexed, after resigning, execute a deed for lands sold by him while in office. Elstner v. Fife, 32 Ohio St. 358. An attempted sale by an administrator de bonis non, made because a sale by the administrator was void, may be enjoined by the purchaser. Bell v. Craig, 52 Ala. 215.

A deed executed by an administrator de bonis non, under an order directing his predecessor to execute it, was upheld. Peterman v. Watkins, 19 Ga. 153.

If the will has never been legally admitted to probate, a sale of land made by an administrator de bonis non, who was appointed after the marriage of the sole executrix of such will, is void. Chase v. Ross, 36 Wis.267.

After the guardian's sale had been confirmed and a deed ordered to be executed to the purchaser, the guardian died. Held, that his successor might be ordered to execute the deed and receive the purchasemoney. Lynch v. Kirby, 36 Mich. 238.

Creditors of an intestate brought a bill in chancery against his administrator, and he was removed from office-the title to the intestate's lands, sold by a receiver afterward appointed in the suit, was held good. Walker v. Morris, 14 Ga. 323.

Equity may refuse specific performance of a contract for the sale of lands, made by an administrator with the will annexed. Shelton v. Homer, 5 Metc. 462; Paret v. Keneally, 30 Hun, 15; Speck v. Wohlien, 22 Mo. 310; Robinson's case, 3 Irish L. R. 429; but see Peebles v. Watts, 9 Dana, 102; Parks v. Sears, 117 Mass. 513; Clark v. Hornthal, 47 Miss. 434; De Peyster v. Clendining, 8 Paige, 295; Blakemore v. Kimmons, 8 Baxt. 470; Toler v. Toler, 2 Pat. & H. 71.

See in general 1 Wms. Exrs. (6th Am. ed.) 723 [654] note; 24 Am. Law Reg. (N. S.) 689.-JOHN H. STEW

ART.

1. A party, in order to discredit his opponent's witness, asked him on cross-examination, if he had not been guilty of larceny, and specified the chattels said to have been stolen, which the witness denied. Held, that this prevented him from proving by others that the witness had admitted having stolen the goods named; nor could he be impeached by producing a justice of the peace, and asking him relative to an arrest and criminal charge of the witness before him, followed by an offer to corroborate such justice's evidence by his docket.

2. Query, whether a witness who has been convicted of a crime, and on cross-examination denies it, can be contradicted by producing the record of his conviction.

ON appeal from the ruling of the master.

G. O. Vanderbilt, for appellant.

W. Y. Johnson, contra.

BIRD, V. C. The suit is for divorce. The defendant sought, on the examination of witnesses before the master, to discredit one of the witnesses called and examined by the complainant. This he endeavored to do, first by asking him on cross-examination, if he had not been guilty of larceny, particularly naming the goods said to have been stolen, which the witness denied; and then by offering to prove that he had admitted to others that he had stolen the goods. This testimony was objected to, and rejected by the master. The master was right. He followed the rule as laid down by Greenleaf in his work on Evidence, § 449, and by all the judges who have considered the question on appeal. The question is, not whether the witness may be asked such a question or not, nor whether he can plead his privilege and refuse to answer, but having been asked and answered, whether or not, in such case he can be contradicted when it appears to touch upon matters wholly collateral to the issue between the parties and solely to pertain to the credibility of the witness. In State v. Roberts, 81 N. C. 605, a witness for the State was asked on cross-examination if he had not said to one Wills, "that rather than be outdone by a negro, he would swear to any amount of lies," and also if he had not admitted on a trial before a justice of the peace that he had declared "that he would have all the corn cut down on Sandy Marsh creek, and would poison all the stock on said creek." The witness denied making any such statements. An offer was made to contradict him, which was overruled. On appeal, the Supreme Court said: "The general rule is that when a witness makes statements in the course of his evidence and as a part thereof, as to any fact or facts constituting the subject matter under investigation, he may be impeached by proof of statements or representations to the contrary, but as regards statements of a witness drawn out on crossexamination collateral to the investigation, the same are to be taken as conclusive, and it is not admissible to contradict him by showing declarations or statements inconsistent therewith, with an exception however that disparaging evidence of inconsistent statements in matters collateral may be received when it tends to show the temper, disposition or conduct of the witness in relation to the cause or parties." Greenl. Ev., § 455. In Commonwealth v. Mason, 105 Mass. 163, the court, on appeal, said the questions put the government witness, on cross-examination, whether he had

*43 N. J. Eq. 136.

not offered in another case to suborn a witness, and whether he had not forged the name of the defendant, Francis D. Willard, to certain notes, were inquiries as to collateral and irrelevant matters, and the ruling of the presiding judge rejecting them is not open to exception. See also Commonwealth v. Murray, 36 Leg. Int. 392; People v. McKeller, 53 Cal. 65; People v. Bell, id. 119; Eames v. Whittaker, 123 Mass. 342; Kaler v. Builders Ins. Co., 120 id. 333; Hester v. Commonwealth, 85 Penn. St. 139-157; Madden v. Koester, 52 Iowa, 692-694; Lewis v. Seiger, 8 Pac. Rep. 884; Plato v. Reynolds, 27 N. Y. 586-588; Chapman y. Brooks, 31 id. 75-87; Corning v. Corning, 6 id. 97-104; Stokes v, People, 53 id. 164-176; Ryan v. People, 79 id. 593-600; Furst v. Second Avenue R. Co., 72 id. 542; Conley v. Meeker, 85 id. 618; Stephen's Dig. Ev. (Chase's ed.), p. 227, art. 130.

An offer was made to make proof of criminal conduct of this same witness by producing a justice of the peace with his docket, and asking the justice respecting his aetions in issuing process, and then offering to prove what he had done, and the nature of the offense charged by his docket. The docket was admitted under objections. An appeal was taken. These offers must fall for the reason above given, and also for the reason as every one must admit, that nothing could be more monstrous than to solemnly adjudge that to impeach a witness you need only show he has been charged and arrested for a crime, and also for the further reason that the justice has no authority to keep a docket and to make record in any such case for any such purposes. In this respect the principles laid down in Hester v. Commonwealth, supra, are applicable.

In these respects the ruling of the master ought to be sustained. The defendant must pay the costs of appeal.

It will be seen that the questions presented do not involve any construction of the first section of the act concerning evidence (Rev. p. 378), which provides that a witness convicted of a crime may be so shown, either by cross-examination or by the production of the record thereof. I have not been called upon to decide whether or not, in such a case, a witness who has been convicted, and on cross-examination denies it, could be contradicted by the record.

NOTE. The practice in chancery in regard to the impeachment of witnesses is the same as at law. Sawyer v. Sawyer, Walk. (Mich.) 48. See Kober v. Miller, 38 Hun, 184, 185.

The old rule was that if a defendant, on examination as a witness, denied having been convicted of a crime, he could not afterward be contradicted, 2 Phil. Ev. (C. H. & E. notes) 950; Goddard v. Parr, 24 L. J. Eq. 783, 784; see People v. Wolcott, 51 Mich. 612; except where he stated on his direct examination that he was not guilty of the former offense. Com. v. Murray, 13 Phila. 454.

In Marx v. People, 63 Barb. 618, a defendant on trial for a felony offered himself as a witness on his own behalf. On cross-examination he was asked whether he had not been convicted and sentenced on a plea of guilty, for burglary, on a specified day, which he denied. Afterward the prosecutor, stating its contents, offered a copy of the record, showing that a person of the same name as the defendant had been convicted and sentenced as stated, and then offered to prove the defendant's identity, which last offer was overruled. Held, that the record was inadmissible.

After a denial of his guilt, the prosecutor was allowed to introduce the record of his conviction, in order to contradict the defendant. People v. Chin Mook Sow, 51 Cal. 597.

The English statutes (28 and 29, Vict. chap. 18, § 6),