188 WINDER v, DIFFENDERFFER.

prior to the commencement of the seventeenth century, were
almost always appointed from among the dignitaries of the then
established catholic church of England; and those ecclesiastical
Chancellors gave to the Chancery Court, as a court of equity, its
general outline and substantially fashioned its modes of proceed-
ing, (n)

Hence it is fair to conclude, that this mode of collecting testi-
mony, under a solemn injunction of secrecy, was an ecclesiastical
contrivance; and that it may be regarded as one of the papal per-
versions of the mode of administering justice, (o) A slight review
of the English authorities upon this subject will be sufficient to
show, that this rigid obligation of secrecy in taking testimony is
always inconvenient, and often attended with great expense and
delay, besides being sometimes made the instrument of the most
grievous fraud, (p)

The mode of collecting testimony in the Court of Chancery of
Maryland has been altered and materially improved. The whole
proceedings under a commission to take testimony have been
thrown open; all secrecy has been abolished; and each party
is required to be notified, and has a right to be present, and to
have his interrogatories publicly propounded to the witnesses, (q)

(n) 3 Blac. Com. 54; Park's His. Co. Chan. 20,49.—(o) 1 Bro. Civ. Law, 478; The
William and Mary, 4 Rob. Ad. Rep. 381.—(p) Cooth v. Jackson, 6 Ves. 12.—(g) In
Maryland, as in England, in all cases where evidence was proposed to be collected,
under an ordinary commission for that purpose, the commissioners and clerk's oath,
sent with the commission, required them to swear, that they would not publish, dis-
close, or make known to any person the contents of any of the depositions until pub-
lication should be passed; Kent v. Emory, 22d May, 1769, Chancery Proceedings,
lib. W. K. No. 1, fol. 332; Mackall v. Morsell, 5th March 1770; ibid, fol. 224;
Cockey v, Hammond, 26th August, 1774, ibid, fol. 332; Howell v. Fell, 2lst May, 1783,
Chancery Proceedings, No. 2, fol. 17; Usher v. Brown, 28th February, 1786, ibid. 591.
And the oath directed to be taken by the register of the High Court of Chancery of
Maryland in the year 1670, required him also to swear, that he would not publish
or shew, directly or indirectly, the depositions to any. person, before publication,
without warrant from the court, Chancery Proceedings, lib, C. D. fol. 34. In the
year 1824, an eminent London solicitor, in speaking of the course of chancery pro-
ceedings in England, in this respect, declared, 'that no real remedy for the present
evils of the equity jurisdiction existed, but in the general substitution of public viva,
voce testimony for the present system of secret written evidence,' Park's His. Co.
Chan. 453, 561, 566. But, in Maryland, under a commission to audit and settle ac-
counts, neither the commissioners nor their clerks were sworn to secrecy; and there-
fore, in such cases, the depositions of witnesses brought before such commissioners
were always taken publicly in presence of the parties if they chose to attend; Clap-
ham v. Thompson, 1 Bland, 123, note; Dorsey v. Dulany, 1 Bland, 465, note. Nor,
as it would seem, was there any injunction of secrecy in taking testimony under a