should be advised that no inference that the witness is a criminal should be drawn from his refusal to answer, and in any case if, after he has claimed his privilege, he is forced to answer, the information given cannot afterwards be used against him,2 or by either party in the pending action. Where the witness, because he has been acquitted, or by lapse of time, is no longer liable to a prosecution, he is not privileged, and may be compelled to answer. § 354b. Bias and prejudice of the witness. These words, though commonly employed together, are not synonymous. Prejudice, in strictness of language, means a prejudgment, any judgment or opinion formed beforehand, and does not, in its legal acceptation, necessarily imply any ill-will or enmity towards a person. But a person whose mind is biased, whether he be a witness or a juror, is one who entertains such a degree of personal dislike towards one party, or such an inclination, affection or prepossession towards the other, that he is utterly incapable of acting or speaking indifferently and impartially as to a transaction in which either is concerned. A man who is prejudiced, who has made up his iams v. State (Ala., 1893), 13 S. Rep. before he can claim to be privileged 333. 1 State v. Bartlett, 55 Me. 200; Devries v. Phillips, 63 N. C. 53. It is submitted that any rule, whether statutory or formulated by judicial legislation, which forbids a juror from drawing the perfectly logical and fair conclusion that a witness is a criminal because he claims the privilege of refusing to answer incriminating questions, would be nugatory. 2 So by statute. See Ex parte Buskett, 106 Mo. 602; 17 S. W. Rep. 753; United States v. Smith, 47 Fed. Rep. 501. Reg v. Kinglake, 22 L. T. (N. S.) 335. A witness who is under indictment for a crime which is the subject of a legislative investigation cannot for that reason refuse to attend or to be sworn as a witness. He must wait until he is questioned from answering the incriminating questions. In re Eckstein, 24 Atl. Rep. 63; 3 W. N. C. 59; 10 Pa. Co. Ct. R. 41. 4 Lathrop v. Roberts, 16 Colo. 250. 5 Ex parte Boscowitz, 84 Ala. 434; People v. Kelly, 24 N. Y. 74; So. Rail. N. Co. v. Russell (Ga., 1893), 18 S. E. Rep. 40. Contra, McFadden v. Reynolds (Pa., 1888), 11 Atl. Rep. 638. He may also be compelled to answer incriminating questions where it is expressly provided by statute that such testimony shall in no case be used against him. Ex parte Buskett, 17 S. W. Rep. 753; 106 Mo. 602. 6 Anderson's Law Dict., "Prejudice;" Willis v. State, 12 Ga, 448; Com. v. Webster, 5 Cush. 297. 7 In Everman v. Hyman (Ind., 1892), 28 N. E. Rep. 1022, bias is defined as "A leaning of the mind, mind and formed an opinion as to the justice of the cause, is necessarily biased towards that party whose case he believes is just. But a witness may be biased by his interest or by the ties of friendship or affection without being prejudiced, i. e., without having any definite opinion as to the merits of the case. The bias of a witness so far as it affects the credibility of his testimony is not collateral and may always be shown either by his own statements on his examination or by the independent evidence of others. Thus, as has been already pointed out, a party may show that his own witness has unexpectedly proved hostile to him and may emphasize such hostility or bias by showing by another witness that the biased witness was formerly favorably inclined towards him.' The bias of the witness may also be shown on his cross-examination by interrogating him as to his sympathy or hostility towards either of the parties or as to his interest in the subject-matter. Though the possession of an actual pecuniary interest is generally no longer an objection to the competency of a witness, it may still be shown as a fact from which the jury may infer that the witness was biased. And the same principle is recognized in the case of an existing relationship between the witness and a party to the action. So the jury may with propriety employ great caution in weighing the testimony of witnesses who are near relatives of the accused in a criminal trial when they testify in his behalf, unless the inference of bias is rebutted by the party who calls the wit propensity towards the object, not leaving the mind indifferent; inclination, prepossession, bent." 1 See ante, § 348. 2 See ante, § 340. In proving bias for the purpose not of direct contradiction but of discrediting the witness, it is the general rule that a foundation must be laid and the attention of the witness called to the time and place of the declarations showing bias. Queen's Case, 2 B. & B. 284, 311; Edwards v. Sullivan, 8 Ired. (N. C.) 302; Crumpton v. State, 52 Ark. 273; Baker v. Joseph, 16 Cal. 173: Bates v. Holladay, 31 Mo. App. 162 (bribery of witness). If on being questioned witness denies that he is biased, the fact may then be shown by other witnesses. State v. McFarlain, 41 La. Ann. 686; Hamilton v. Man. Ry. Co., 9 N. Y. S. 313; Bennett v. State, 28 Tex. App. 329. 3 United States v. Ford, 23 Fed. Rep. 861; State v. Byers, 100 N. C. 512; 6 S. C. R. 420; Simpson v. State, 78 Ga. 91; Staser v. Hogan, 120 Ind. 207. ness proving that the witness and he have been on bad terms.1 The bias of the witness may have arisen because of promises or threats made or bribes offered by one of the litigants. Though the witness was thus tampered with his testimony is still admissible, and while evidence of the attempt to bribe is admissible it is for the jury to determine if either party was implicated and what effect, if any, the threats or bribery may have had upon the credibility of the testimony of the witness.2 1 Clapp v. Wilson, 5 Denio (N. Y.), 285. 2 Hitchcock v. Moore, 70 Mich. 112; 37 N. W. Rep. 914. CHAPTER XXV. AFFIDAVITS AND DEPOSITIONS. 355. Affidavits and depositions de- | § 360. Mode of procuring deposi fined and distinguished. 356. Parties to affidavits. 357. Formal requisites of affidavits. 358. Language of the affidavit. 359. Definition and character of depositions. tions. 361. Statutes construed -The cer tificate. 362. Objections to depositions. § 355. Affidavits and depositions defined and distinguished. Written evidence which is verified by an oath is sometimes loosely classified under the general term "deposition." In view of the different uses to which affidavits and depositions may be put, it is important to distinguish clearly between them. A deposition usually consists of answers to questions oral or written, and the opposite party is entitled to notice and must be given an opportunity to cross-examine the deponent. An affidavit, on the other hand, is commonly voluntary, ex parte, and may be and usually is taken without notice to the adverse party. So the uses to which an affidavit may be put are very different from a deposition. Thus, an affidavit is of utility in matters which are collateral or initiatory to the subject of the trial, but which prepare for it or facilitate its progress; as, for example, where some extraordinary remedy, as an attachment or an injunction, is sought, or where a commission is required for the purpose of procuring the testimony of an absent witness, or where it is desired 1 See post, § 359 et seq. Dudley v. McCord, 65 Iowa, 671. 3" An affidavit is simply a declaration, on oath, in writing, sworn to by the declarant before a person who has authority to administer oaths." Harris v. Lester, 80 Ill. 311; Woods v. State (Ind., 1893), 33 N. E. Rep. 903; State v. Hennings (S. D., 1893), 54 N. W. Rep. 537; Stimpson v. Brooks, 3 Blatch. 436; Atchison v. Bartholow, 4 Kan. 124; State v. Dayton, 25 N. J. L. 54. 516 4 Wirt v. Dinan, 44 N. Y. App. 583. Questions which do not involve the matter in controversy, but mat 1 to open a default to obtain a continuance or a new trial, or on a motion for judgment on a nonsuit. They are no part of the record unless they are made so, and serve mainly to verify facts which are not themselves matter of record. Except so far as they may constitute admissions of the affiant, affidavits are not evidence of the material facts in issue.* § 356. Parties to affidavits.- An affidavit should be made by a party to the action, and it is immaterial whether he is a party to the record if he is a party in interest; though, if it be shown that the party is disabled by illness, or that he is out of the jurisdiction, an affidavit by his counsel may be admissible. But the reason that the affidavit is not made by the party, and the authority of the attorney to act for him, must appear on the face of the affidavit. In the absence of ter which is auxiliary to the trial, which facilitates the preparation for it, often depend on the oath of the party. An affidavit to the materiality of a witness, for the purpose of obtaining a continuance or a commission to take his deposition, or an affidavit of his inability to attend, is usually made by the party and received without objection. So affidavits in support of a new trial are often received." Taylor v. Biggs, 1 Pet. (U. S.) 591. 1 Freeport v. Penrod, 53 N. W. Rep. 74; 35 Neb. 273; Dawson v. Coston (Colo., 1893), 33 Pac. Rep. 189; Keith v. Knoche, 43 Ill. App. 161. 3 Har. & J. (Md.) 71; Nat. S. S. Co. v. Tugman, 143 U. S. 28; Asbach v. Chicago, etc. Co. (Iowa, 1893), 53 N. W. Rep. 90; Ohio, etc. Co. v. Levy (Ind., 1893), 32 N. E. Rep. 815. 4 Feeley v. Steinmetz, 22 Pa. St. 437; Hunter v. Riley, 36 Pa. St. 509; Miller v. Hooker, 2 How. Pr. (N. Y.) 124. 6 Spencer v. Bell, 109 N. C. 39; Gazam v. Royce, 78 Ga. 512. Conviction of an infamous crime renders a person incompetent to make an affidavit at common law. People v. Robinson, 26 How. Pr. 90; Webster v. Mann, 56 Tex. 119. See ante, § 319. Where an affidavit is 2 Atkinson v. Saltman (Ind., 1893), made by a person who is incarcer29 N. E. Rep. 435. 3 Ames v. Merriam, 9 Wend. (N. Y.) 498. Supplemental affidavits are those which contain averments upon the same subject as another prior affidavit and which are designed to remedy some defect in it. Callan v. Lukens, 89 Pa. St. 136: Fritz v. Hathaway, 19 Atl. Rep. 1011; 26 W. N. C. 273. Lewis v. Bacon, 3 Hen. & M. (Va.) 89; Armstrong v. Boylan, 4 N. J. L. 84; Patterson v. Insurance Co., ated in an insane asylum, the jurat must show the place where it was made and all the surrounding circumstances in order that the mental condition of the affiant may be inquired into. Spittle v. Walton, L R. 11 Eq. 420. 7 Pack v. Geofroy, 19 N. Y. S. 583; Blake Crusher Co. v. Ward, 1 Am. L. T. R. 423; Jackson v. Woodworth, 3 Paige (N. Y.), 136; City v. Devine, 1 W. N. C. (Pa.) 358. 8 Adams v. Kellogg, 63 Mich. 105; |