After the passing of the statute, authorising the examination of witnesses openly before the -examiner or commissioner, it was found that part of the evils which had been anticipated were actually produced by this change in the practice of this court. When the principal witnesses had been examined, the parties respectively were in the habit of protracting the closing of the proofs, to endeavor to fish up testimony to contradict the depositions of the witnesses who had been examined against them. By this course of proceeding, garbled conversations and much useless matter wholly irrelevant to the issue in the cause, were frequently introduced. There was also reason to apprehend it sometimes led to subornation of perjury. The object of the 83d rule was to remedy this evil, as far as practicable, by requiring the parties to interchange- lists of their witnesses, either between themselves or in the piesence of the examiner, before the taking of the testimony was commenced. It was supposed this *194could be done with as much ease as upon a trial at the cirjcuit, or in the court of common pleas; where the respective parties are obliged to prepare themselves, and in most cases even to summon their witnesses and procure their actual attendance, long before the commencement of the trial.
It was not intended, however, that any captious advantage should be taken of a party who had, through inadvertence, neglected to furnish the names of his witnesses in time. And in this case it was perfectly evident that the defendants’ solicitor had misunderstood the effect and intention of the rule. Liberal practice, therefore, required of the complainants’ solicitor, if he intended to hold his adversary to the strict letter of the rule, that he should have pointed his attention thereto when they were both present before the examiner, and have given him fair notice that he must comply therewith or that he would be precluded. If this course had been pursued, the court would have required of these defendants something more than a mere affidavit of the materiality of the testimony, before it would have permitted them to examine witnesses not named before the taking of the testimony was commenced. In such a case, the court would require of the party, in order to bring himself within the second clause of the rule, not only to furnish an excuse for not naming the witnesses before, but also to state on oath the substance of what he believed he should be able to prove by them ; so that the court could see he was not seeking to violate the spirit and intent of the rule.
In this case the defendants must be permitted to examine the witnesses named in the first application ; but they are not to be at liberty to examine them as to any declarations or conversations of the witnesses already sworn on the part of the complainants. The two, additional witnesses named in this application have been hunted up, since the testimony on the part of the complainants was closed. And as the affidavit does not show what is expected to be proved by them, they are not to be examined unless the complainants elect to examine other witnesses on their part.' The complainants are to be at liberty to examine any other witnesses on their part, provided they give notice of such election, and furnish the names, &e. of such witnesses to the adverse party, or to the ex*195aminer, before the taking of the testimony is resumed. And if they give notice of such election, the defendants are also to be at liberty to examine such witnesses as they may choose, upon furnishing their names to the adverse party or to the examiner, in the same manner. The time for closing the proofs is also to be extended thirty days from the entry of this order, to enable the respective parties tb take their testimony.
From the facts appearing on these affidavits, I think the complainants’ solicitor should have permitted these defendants to examine the witnesses first named, upon fair and reasonable terms. And I cannot encourage the sending of parties here for relief, -with no other object than to obtain the costs of resisting the application. Therefore, neither party is to have any costs on this or the previous application. If the complainants’ solicitor was willing to consent to the examination of the witnesses upon condition of being permitted to examine other witnesses on his part, or upon any other equitable terms, he should have stated those terms to the solicitor of the defendants at the time this request was made. In that case, if those terms had not been acceded to, and the complainants had been compelled to come here and resist the application, to enable them to obtain such terms as were just and reasonable, they would have been allowed their costs.