FISCHER V. HATES. 87 �affidavit. The testimony referred to is in the form of ques- tions and answers, and in reply to question 13 Mr. MacClay explains a drawing then produced and shown to him, and stated to be offered in evidence, and marked as an exhtbit. Mr. Mac- Clay also states that when he was eross-examined by the defendant's soliciter, on the thirty-first of March, 1880, he thought the cross-examination related to aifidavits he had made in this case in 1879, It is stated in the heading of the direct examination that MacClay was first duly swom. At the end of the direct examination is a jurat signed by Mr. Shields, the examiner, to the effeet that it was swom to be- fore him March 18, 1880. The defendant's solicitor was not present at the direct examination, he having intentionally remained away, though notified, on the ground that he re- garded the proceeding as irregular. As he was absent, it was not unnatural that Mr. MacClay, a layman, should not understand that he was being examined as a witness in chief for final hearing. It appears, by the files of this court, that he had sworn to an affidavit in this suit before Mr. Abbott, as a notary public, on the twenty-third of May, 1879, and to another affidavit in this suit before him on the twelfth of June, 1879. �Mr. MacClay's recollection on the seventh of December, 1880, as such recollection appears in his affidavit of that date, in narrative form, as to what occurred at Mr. Blake's office on the eighteenth of March, 1880, is very different from what appears from his cross-examination on the thirty-first of March, 1880, to be his then recollection of those occurrences, if such cross-examination is to be taken as referring to what occurred on the eighteenth of March, 1880, and not to what occurred on one or the other of the occasions when he made the affidavits in 1879 before Mr. Abbott. Mr. MacClay says that he did not understand he was being cross-examined as to his deposition of March 18, 1880, but thought he was being cross- examined as to his affidavits of 1879. It is plain that Mr. Whitelegge, who cross-examined him, thought he was cross- examining him as to what occurred on March 18, 1880, and probably the plaintiS's solicitor must have so thought, Mac- ��� �
