WINDER v. DIFFENDERFFER.—2 BLAND. 181

presumed, that he had waived the benefit of that of which he had
failed to avail himself, and of which he had had full knowledge.
Callaghan v. Rochfort, 3 Atk. 643; Vaughan v. Worrall, 2 Swan.
400. It is, in general, * true that a party cannot discredit

his own witness, Fenton v. Hughes, 7 Ves. 290; Purcell v. 193
McNamara, 8 Ves. 326; Wood v. Hammerton, 9 Fes. 145; Queen v.
The State, 5 H. & J. 232; 1 Bro. Civ. Law, 478, said to be otherwise
in criminal cases; Slate v. Norris, 1 Hayw. Rep. 438; and therefore,
if it should appear, at the hearing, as has been objected by this
defendant, John Diffenderffer, that the plaintiffs have, in truth,
taken testimony to discredit any one of their own witnesses, such
testimony must be rejected. But as the examination cannot be
suspended for the purpose of determining the bearing of any testi-
mony in this respect, or of ascertaining the competency of a wit-
ness, the cross-examination, by the party who then makes the ob-
jection, cannot be deemed, at the hearing, a waiver of it; because
a party cannot be presumed to have waived any ground of claim,
or defence, which it was not in his power to have insisted upon,
with effect, at an earlier stage of the case. Moorhouse v. DePas-
mu, 19 Ves. 433; 8. C. Coop. 300; Harrison v. Courtauld, 4 Vond.
Chan. Rep. 409. No injury or disadvantage to any suitor can arise
from this course of proceeding, since the Court cannot, in any re-
spect, found its decree upon incompetent or irrelevant testimony;
and if it should do so, it would be deemed error, and the decree
might, on appeal, be for that cause reversed. Clark v. Turton, 11
Ves. 240. :

I shall, upon the received principles of the English practice, hold
the party or his solicitor strictly responsible for the propriety and
pertinency of the interrogatories propounded by him to the wit-
nesses. : And although commissioners should not confine them-
selves strictly to the letter of the interrogatories; but ought so to
take down everything., that the whole truth may plainly appear;
yet, they should not insert any matter from a witness, not properly
and substantially pertinent to the interrogatory propounded. 4
Inst, 278: White-lock v. Baker, 13 Vets. 515. Any scandalous, im-
pertinent or irrelevant matter returned under a commission may
be suppressed and taken off the file; and the party solicitor, or
commissioner on being convicted of the irregularity may be made
to pay the costs or otherwise punished; since it is indispensably
necessary, that the Court should be enabled to vindicate the regu-
larity and purity of its proceedings, and prevent its records from
being made the depository of any foul or scandalous matter foreign
from the point in controversy. Sanford v. Remington, 2 Ves. Jun.
189; Cooth v. Jackson, 6 Vex. 41; Eastham v. Liddell, 12 Vea. 201;
Mill v. Mill, 12 Ves. 498; 1 Harr. Pro,. Chan. 455.

* I have so far only considered and disposed of the objec-
tions proceeding from the party to the suit; but, in this case, 194