¶1The complainant obtained the right for an examination of the witnesses in this case in open court. No evidence was introduced on the part of defendant. Some of complainant’s witnesses were sworn and examined in a room adjoining the court room but not in the presence •or hearing of the judge. Defendant’s solicitor assented to this testimony being so taken, while her counsel objected and neither appeared nor cross-examined these witnesses. One witness was examined before the circuit court commissioner, and the signing of the testimony so taken was orally waived by the respective parties. All the above testimony is now •objected to by counsel for defendant.
¶2Where witnesses are examined before a commissioner the testimony should be read over to them for correction and authentication by the signature of the witness. This is a safeguard against mistakes in reducing the testimony to writing that should not be waived to suit the convenience of counsel or witnesses, but only in cases of absolute necessity. In cases of conflict between witnesses, where the depositions are not signed, the court cannot be sure that the evidence would not have been corrected or been different if read over to the witness, corrected and signed, or that the conflict is not caused by ■the mistake of the commissioner in reducing the testimony as given. We should not however reject such evidence, but must receive it with very great caution, and where it is in conflict with other evidence properly authenticated, we must give the latter a controlling effect: Godfrey v. White 43 Mich. 171.
¶3Even if we strike out the testimony not taken before the commissioner and not in the presence or hearing of the judge, which we are inclined to think should be done, there is still enough left upon which the relief prayed for should be granted.
¶4The decree will be affirmed.