ON REHEARING.
Opinion delivered January 17, 1907.
Hiel, C. J.Appellants ask the court to modify the judgment by reversing as to Mrs. Smith as well as Mr. Bush, and present two grounds therefor.
First. That the same rules governing depositions in suits at law do not govern in suits in chancery; and,
Second. That the Railway Company would not be required to actually participate in the fraud practiced upon Mrs. Smith by Guy Nelson if there was sufficient evidence to show knowledge of the fraud which Nelson was practicing upon her.
1. The constitutional provision (sec. 2. of the schedule) applies to all civil actions, equity as well as law; but there is a. difference in the use of depositions at lav and in equity. 'It is; pointed out in St. Louis, I. M. & S. Ry. Co. v. Hamper, 50 Ark. 157. There may be an importance in this difference in determining whether the witness is offered -at the time his deposition is taken and filed, or when it is introduced in evidence. There is a hopeless conflict in the authorities on this question-See the varying views and the authorities cited to support each in 13 Cyc. 993-5.
If the testimony is tested at law when it is offered, then the depositions go out. Park v. Lock, 48 Ark. 133. On the other hand, appellant’s contention is thus stated in Sheidley v. Aultman, 18 Fed. 666: “The rule in chancery is that if the testimony.was competent when the deposition was taken and filed, it remained competent, and the subsequent death of the. party does not affect .its use in the trial; that the administrator merely takes up the case as it stood when the intestate party died.” (Citing author-ties.) Should this be the accepted test of competency, and not when it is offered to the court, still the depositions in question go out. The deposition of Mrs. Smith, while taken on the 2d of October, 1902, was not filed until the 29th of November, 1905. Mr. Bush’s testimony was given in open court on the trial of this case, but a deposition of his was taken on’the same day that the deposition of Mrs. Smith was filed — the 29th of November, 1905. The record does not show the date that Mr. Nelson died, but it does show that the suit was pending in the name of Mr Hamby as administrator of Nelson at the time Mrs. Smith’s deposition was filed and Mr. Bush’s taken. And it is stated in the brief of his administrator that he died on November 4, 1904. It is thus seen that if the view most favorable to the appellants be adopted the depositions would not be admissible, as they did not become parts of the record until after the death of Nelson, and while the suit was pending against his administrator
The court will determine which of these rules is supported by the sounder reason when the case arises which calls for such decision.
2. The competent evidence falls short of showing that the Railway Company knew that Mr. Nelson was practicing a fraud upon his client, Mrs. Smith. It is quite evident that the Railway 'Company had knowledge that Mr. Nelson was settling Mrs. Smith’s case without the knowledge of his former partner,. Mr. Bush, and over his head; but the court does not think that the evidence is sufficient to charge the Railway Company with the knowledge of any fraud which Mr. Nelson may have practiced xipon Mrs. Smith, unless these depositions can be considered.
Motion is overruled.