1. The practice permits a person who has served the notice that a deposition will be taken, to appear before the commissioners and swear to that fact; and if the certificate of the commissioners show it, the deposition may be read.
2. Where two commissioners take a deposition, one alone cannot amend the certificate made by both.
3. A party cannot impeach the credibility of his own witness.
4. But a defendant, by calling back one of the plaintiff's witnesses to examine him to a distinct fact, does not thereby make him his witness.
PER CURIAM.
It is very correct to say that a plaintiff or defendant cannot discredit a witness produced by himself; but the reason of this rule does not apply to the case before us. If a man could discredit a witness called by himself, he might, having the means of discrediting her in his own power, pass for true that which she swore if it made for him, but destroy the effect if it made against him. Here the witness was not produced by the defendant. It would be of dangerous consequence if when produced by the plaintiff the defendant could not interrogate the witness except as to the facts which she had deposed for the plaintiff; for then all distinct facts within her knowledge, however much they would operate for the benefit of the defendant if brought out, must remain undrawn from the witness, for fear of the defendant's being precluded from the advantage of proving her want of credit. The question asked by defendant's counsel on the present occasion is to be considered as an interrogatory as to a distinct fact upon the cross-examination of the witness, although it was put to her after her first examination was desisted from for some time, and other witnesses examined in the intermediate time between her first examination and being called again.
The witnesses to discredit her were sworn. The Court doubted (398) for some time whether the deliverer of a notice to take depositions could be sworn as to the time he gave notice before the commissioners appointed to take the depositions; but several of the bar informing him that was the usual practice, the Court said it was so; he could not alter it.
NOTE. — As to the rule that a party cannot impeach the credibility of his own witness, see S. v. Norris, 2 N.C. 429, and the last note to that case. See, also, Spencer v. White, 24 N.C. 236.
Cited: S. v. Taylor, 88 N.C. 697; Smith v. R. R., 147 N.C. 607; Lynch v. Veneer Co., 169 N.C. 171.