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to remedy; » Dunkle v. Worcester, (1869) 5 within the provisions of this section. Richter Biss. (U. S.) 102, 8 Fed. Cas. No. 4,162; 1. Jerome, (1885) 25 Fed. Rep. 679. Jones v. Greenolds, (1806) 1 Cranch (C. C.) Causes pending in the Supreme Court.,339; Thorpe 1. Simmons, (1819) 2 Cranch In The Argo, (1817) 2 Wheat. (U. S.) 287, (C. C.) 195, 23 Fed. Cas. No, 14,007; Russell the court was of the opinion that the pro1. Ashley, (1847) Hempst." (U. S.) 549; vision as to taking depositions de bene esse Wilson Sewing Mach. Co. 7. Jackson, (1877) does not apply to cases pending in the Su1 Hughes (U. S.) 295, 30 Fed. Cas. No. preme Court, depositions for use before such 17,853; Stein v. Bowman, (1839) 13 Pet. court being regularly taken only under a (L. S.) 209; Cook 1. Burnley, (1867) 11 commission issuing according to its rules. Wall. (U. S.) 659; Shutte 1. Thompson, Where witness "lives."

For the purpose (1872) 15 Wall. (U. S.) 151; Hunter v. In- of taking a deposition under this statute, a ternational R. Imp. Co., (1886) 28 Fed. Rep. witness lives where he can be found, and 842; In re Thomas, (1888) 35 Fed. Rep. 822; is sojourning, residing, or abiding for any Bowie v. Talbot, (1805) 1 Cranch (C. C.) 247; lawful purpose.” Mutual Ben. L. Ins. Co. v. Rutherford 1. Geddes, (1866) 4 Wall. (U. S.) Robison, (C. C. A. 1893) 58 Fed. Rep. 723. 224; Penns 1. Ingraham, (1811) 2 Wash. How distance measured. - In the matter (U. S.) 487; Banert 1". Day, (1814) 3 Wash. of taking the deposition of a witness who (U. S.) 244; Read 1. Bertrand, (1825) 4 resicles more than one hundred miles from the Wash. (U. S.) 558; Rhoades 1. Selin, (1827) place of trial, “ the distance is to be deter4 Wash. (U. S.) 724; The Samuel, (1816) 1 mined by the ordinary, usual, and shortest Wheat. (U. S.) 9.

route of public travel, and not by a matheMode of taking depositions — state prac- matically straight line between the place of tice. — When the facts are such in a common- residence and the place of trial.” Jennings law case that, under the provisions of the v. Menaugh, (1902) 118 Fed. Rep. 612 [folstatutes of the United States, the right to louing Ex p. Beebees, (1851) 2 Wall. Jr. take the testimony of witnesses by depositions (C. C.) 127, 3 Fed. Cas. No. 1,220; In re exists, then, by reason of R. S. sec. 914, as Foster, (1872) 44 Vt. 570; Smith v. Into the mere mode of procuring the deposi- graham, (1827) 7 Cow. (N. Y.) 419). tions, parties may follow at their own elec- Certificate as evidence of distance of resition either the provisions of the state law or dence. — The certificate of the magistrate beof the Act of Congress. McLennan v. Kan- fore whom the deposition is taken is comsas City, etc., R. Co., (1884) 22 Fed. Rep. petent evidence as to the distance at which 198. See also Flint v. Crawford County, the witness resides from the place of caption, (1879) 5 Dill. (U. S.) 481; U. S. 1. Fifty this being a fact proper for the inquiry of the Boxes, etc., Lace, (1899) 92 Fed. Rep. 601; officer taking the deposition. Merrill v. DawU. S. Life Ins. Co. v. Ross, (C. C. A. 1900) son, (1848) Hempst. (U. S.) 563 [citing 102 Fed. Rep. 722.

Patapsco Ins. Co. 1. Southgate, (1831) 5 This view has been confirmed by statute, Pet. (U. S.) 617; Bell 1. Morrison, (1828) see Act of March 9, 1892, ch. 14, 27 Stat. L. 1 Pet. (U. S.) 351). 7, given infra, p. 22.

Where, in his certificate, the person who But in adopting a state practice as to the took the depositions stated that the witnesses taking of depositions the court does not dis- lived more than one hundred miles from the pense with the requirements of the Act of place of holding court, and further that the Congress, such adoption of the state law re- other party had no agent known to him residferring only to the form and mode of taking ing within one hundred miles of the place of depositions. Curtis v. Central R. Co., (1855) taking the depositions, it was held that the 6 McLean (U. S.) 401.

requirements of the act

satisfied. Examination before issue joined. - Under Tooker v. Thompson, (1842) 3 McLean (U. this section, and under section 858, providing

S.) 92. that, with certain exceptions in the federal Under the Act of Sept. 24, 1789, 1 Stat. L., courts, no witness shall be excluded in any ch. 20, § 30, p. 88, the person before whom civil action because he is a party to or inter- the deposition was taken certified that neither ested in the issue tried, the defendant in an

the opposite party nor his counsel resided action on a promissory note was held entitled within one hundred miles of the place of capto examine the plaintiff de bene esse before tion, and that, consequently, no notification issue joined, the plaintiff living outside of of the time and place of taking the deposition the district and at a greater distance from was made out or served. It was held that the place of trial than a hundred miles. such certificate was sufficient, it not being Lowrey v. Kusworm, (1895) 66 Fed. Rep: necessary for the commissioner to certify that 539, distinguishing Ex p. Fisk, (1885) 113

the parties were not actually within that disU. S. 713.

tance, and if they had been temporarily But this section, together with Supreme within such distance, and the commissioner Court Rule 68, in reference thereto, does not was not aware thereof, the certificate would permit the taking of testimony de bene esse still be sufficient; but the certificate would in an equity cause before issue joined. not be valid if by parol proof it were estabStevens v. Missouri, ete., R. Co., (1900) 104 lished either that the party had resided Fed. Rep. 934; Flower 1. MacGinniss, (C: C. within one hundred miles or that he was, and A. 1901) 112 Fed. Rep. 377.

the commissioner knew him to be, temporarily “Depending in a District or Circuit Court." within such distance. Dick v. Runnels, - Where a case has gone on appeal to the (1847) 5 How. (U. S.) 7. Supreme Court, it is no longer " depending" This section "does not apply to witness in a Circuit Court, and therefore is no longer who is casually absent from home, although


he is found at a place more than one hundred ceedings are to be strictly scrutinized as miles from the place of trial of the cause, here, not without some weight;” Centre v. unless he is about going to sea, or is aged, Keene, (1820) 2 Cranch (C. C.) 198, where infirm, etc." Er p. Humphrey, (1851) 2 the objection that the style of cause was not Blatchf. (C. S.) 228, 12 Fed. (ss. No. 6,867. stated in full in the caption was sustained;

“ The liability of the witness to be ordered Peyton v. Veitch, (1816) 2 Cranch (C. C.) out of the reach of the court is not one of 123; and Murray u. Marsh, (1803) 2 Hayw. the causes deemed sufficient by the law for (N. Car.) 290. taking a deposition de bene esse," and there- Misspelling and omission in caption. fore it was held that where the witness was Neither the misspelling, in the caption, of the a sea man on board a United States gunboat name of one of the parties, nor the omission in the harbor of Newport, and liable to be therein of the name of the county in which ordered to some other place and not to be the action is pending, is a fatal objection, able to attend the court at the time of its Van Ness 1. Heineke, (1821) 2 Cranch (C. sitting, this was not a sufficient ground for 259. the taking of the deposition de bene esse. Parol evidence as to caption. — Where the The Samuel, (1816) 1 Wheat. (U. S.) 9. magistrate before whom the deposition was The certificate of the proper magistrate to

taken had not certified such a cause of capthe deposition“ is competent evidence to tion as the law requires, parol evidence to prove the requirements of the Act have been disprove what the judge certified as to the fulfilled in taking and certifying the depo- caption was not allowed. Wheaton v. Love, sition.” Smith 1. Williams, (1847) 22 Fed. (1807) 1 Cranch (C. C.) 451, 29 Fed. Cas. Cas, No. 13,127.

No. 17,485. The fact that the caption of the depositions Caption not stating distance. The fact fails to state the names of all the parties to that the caption of the depositions does not the suit, that is, instead of naming each of state that the city where they are to be taken the copartners as plaintiff's, it follows the is more than one hundred miles from the style of the case as given in the notice and place where the trial is to be held, is not a as docketed, is not a sufficient objection to valid objection thereto, where the distance exclude the use of the depositions, as the between the two places is more than one strict rule laid down by the Supreme Court hundred miles, and such fact is well known as to transcripts of records to that court on to the court and to the respective parties. error or appeal, upon which judgment or de- Egbert 1". Citizens' Ins. Co., (1881) 7 Fed. cree may follow, ought not to be pushed to

Rep. 47. the extreme in reference to depositions where Name of place where depositions taken. all the parties had notice and knew in what It is sufficient if, in the caption, tbe person case the testimony was sought. Egbert v. who took the depositions names the place Citizens' Ins. Co., (1881) 7 Fed. Rep. 47. where they were taken. Tooker 1. Thompson, See also Merrill 1'. Dawson, (1848) Hempst. (1842) 3 McLean (U. S.) 92. (l'. S.) 563, where, the name of one of the No reason assigned in certificate for taking defendants having been omitted in the cap- deposition. --- The fact that the officer who tion of the deposition, but appearing in the took the deposition did not, in his certificate, court order appointing commissioners, in the assign any reason for so taking it, was held notice served on the defendants, in the cap- a fatal objection. Sage v. Tauszky, (1877) 6 tion of the interrogatories which were filed Cent. L. J. 7, 21 Fed. Cas. No. 12,214. and attached to and issued with the commis- County court judge. Where a probate sion, in the commission which issued under court is organized for each county of the the authority of the court, and in the oath of state and is a court of record having a seal, the commissioners to execute the same, the the judge of such probate court is a county deposition was admitted; and Buckingham judge, within the description of the law, and r. Burgess, (1844) 3 McLean (L. S.) 368, it is sufficient if the deposition be taken bewhere it was held that, although the caption fore m. Fowler 1. Merrill, (1850) 11 How. was not correctly stated, yet there could be (U. S.) 375; Merrill v. Dawson, (1848) no doubt or uncertainty in the matter. Hempst. (U. S.) 563.

But see contra, Smith 1. Coleman, (1821) Depositions taken by a magistrate who was 2 Cranch (C.C.) 237, 22 Fed. Cas. No. 13,029, a partner of the acting counsel to one of the where the court rejected the deposition, in- parties were not allowed. Nichols v. Harris, asmuch as the name of one of the defend. (1854) 18 Fed. Cas. No. 10,243. ants had been omitted in the caption; Not of counsel to either party.-- The obWaskern ?'. Diamond, (1855) Hempst. (U. jection that the certificate of the magistrate S.) 701, 29 Fed. Cas. No. 17,248, where it before whom the deposition was taken did was held to be necessary to specify the names not state that he was not of counsel of either of all the parties to the suit, in the caption party, nor interested in the event of the or some other part of the depositions, to the cause, was overruled. Miller 1. Young, (1812) end that it may appear on their face that the 2 Cranch (C. C.) 53; Peyton 1'. Veitch, (1816) testimony was taken in the same suit; Allen 2 Cranch (C. C.) 123. r. Blunt, (1846) 2 Woodb. & M. (U. S.) The notary before whom the deposition was 121, 1 Fed. Cas. No. 217, where the fact that taken having certified that he was not counthe names of the parties to the suit are not ! sel or attorney for either of the parties to given correctly in the caption, it being de the suit, it was held that the omission of the scribed as a suit against B., when it is really words, that I am not interested in the against B. & S., although the latter has not 'event of the suit," was not sufficient to in. been served, is "an objection, when the pro- ivalidate the deposition, especially as it ap



peared by his certificate that by consent the sion thereof, the objection that the depositions testimony in the case was taken in shorthand were taken in term time not being within the by a disinterested person under the notary's statute. Union Pac. R. Co. Keese, (C. C. direction, and that the witnesses were A. 1893) 56 Fed. Rep. 288. amined by an attorney for the opposite party. Withdrawal and amendment of deposition. Stewart v. Townsend, (1890) 41 Fed. Rep. 121. Where there was some informality in the

Where a certificate of a notary public con- certificate of the mayor before whom a depo. tains the following statement, “ That I am

sition was taken, and without objection being not of counsel nor interested in any manner made by the counsel on the other side, and by whatever in this cause," it was held that there permission of the court, the deposition was was substantial compliance with this section. withdrawn from the files in order that the American Exch. Nat. Bank v. Spokane Falls certificate might be amended according to First Nat. Bank, (C. C. A. 1897) 82 Fed. the truth of the case, the objection that such Rep. 961 [citing Donahue v. Roberts, (1884) withdrawal and amendment furnished suffi19 Fed. Rep. 863; Gartside Coal Co. v. Max- cient ground for refusal to receive the well, (1884) 20 Fed. Rep. 187].

deposition as evidence was overruled. LeatherA deposition taken under a rule of court berry 1. Radcliffe, (1839) 5 Cranch (C. C.) and executed by a justice of the peace may 550, 15 Fed. Cas. No. 8,163; Gartside Coal be read. This section relates to depositions Co. v. Maxwell, (1884) 20 Fed. Rep. 188. taken without a rule of court. Banert v. Day,

Absence from court to take depositions. (1814) 3 Wash. (U. S.) 243, 2 Fed. Cas. No. “ It is only by consent of parties, or discre836.

tion of the court under peculiar circumProof of authority of officer. — The objec- stances, that, in ordinary cases of taking tion having been made that no proof was depositions, this prior and paramount duty given at the trial that the officer before whom in court should be required to be neglected or the deposition was taken was such officer as suspended, by absence in attending on the he described himself to be in his certificate, taking of depositions. They ought to be all it was held that

if, upon the face of the taken, and the case prepared before the term certificate, it appears that the person before begins." Allen v. Blunt, (1846) 2 Woodb. & whom the deposition was taken was an officer M. (U. S.) 121, 1 Fed. Cas. No. 217. authorized by the Act of Congress to take the Depositions taken without a commission same, it was all that could be required in the or rule of court, in another state, more than first instance.” Ruggles V. Bucknor, (1824) one hundred miles from the place of trial, but 1 Paine (U. S.) 358, 20 Fed. Cas. No. 12,115. conforming in all respects to the Act, were The certificate and seal of the notary have

held admissible in evidence. Pettibone 0. been held sufficient proof of his authority. Derringer, (1818) 4 ll'ash. (U. S.) 215. Dinsmore v. Maroney, (1859) 4 Blatchf. (Ú. The court refused to suffer a deposition S.) 416.

taken before the judge of the city court of The objection that it did not appear, other- Lexington, Ky., to be read. Foreman v. Holwise than by his own certificate, that the per- mead, (1837) 5 Cranch (C. C.) 162, 9 Fed. son before whom the deposition was taken

Cas, No. 4,935. had authority therefor, was overruled. Vasse Deposition taken in state court. The v. Smith, (1811) 2 Cranch (C. C.) 31, 28 Fed. deposition having been taken of a witness who Cas. No. 16,896; Jasper v. Porter, (1841) 2 resides within a hundred miles of the place McLean (U. S.) 579.

of trial of a cause pending in a state court, It is not necessary, where a commission for pursuant to the state laws in that behalf, it the taking of depositions has been issued to a was held that, under this section and under notary public and they are taken by him, the Act of Congress of March 9, 1892, prothat he should attach his official seal to the viding that it shall be lawful to take the certificate. Brown 1. Ellis, (1900) 103 Fed. deposition or testimony of witnesses in the Rep. 834.

mode prescribed by the laws of the state in Where the deposition was taken before a which the court is held, the deposition was mayor, who certified as such, but did not admissible when the cause was taken to the aflix his seal, the court presumed that he was federal court, the witness being dead when mayor, as he might not have had any seal as.. the motion for suppression thereof was made. such. Price v. Morris, (1849) 5 McLean (U. U. S. Life Ins. Co. v. Ross, (C. C. A. 1900) S.) 5.

102 Fed. Rep. 722. But “where the officer taking the deposi


Where there was no opportion has an official seal, and usually certifies tunity to cross-examine the witness whose his acts under that seal, his certificate (not deposition

taken, continuance accompanied by his official seal) that he is granted. Dade 1. Young, (1803) 1 Cranch such officer is not sufficient." The court in- (C. C.) 123. timated, however, that the fact that he is Determination of materiality of interrogsuch officer may be proved by parol testimony, atory. - “ The testimony of a witness by as any other matter in pais. Paul v. Lowry, deposition de bene esse may be compelled by (1825) 2 Cranch (C. C.) 628, 18 Fed. Cas. the court of the district in which the witness No. 10,844.

resides, and where the deposition is to be Depositions taken in term time. — The fact taken.

In such case the court or that certain depositions were taken in term judge invoked to compel answer determines time, and without leave of the court, and at the materiality of the interrogatory, so far, a term at which the cause could be tried," is at least, as involved in the exercise of the not alone a sufficient ground for the suppres- power of compulsion." In re Allis, (1890) 44



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Fed. Rep. 216 [citing Er p. Peck, (1853) 3 Blatchf. (U. S.) 113; In re Judson, (1853) 3 Blatchf. (U. S.) 148).

Production of papers. Although on the trial of a case in court, a witness may be compelled by subpæna to produce, under oath, papers within his control, which are proved to be material to the questions in issue, yet Congress has provided a different mode for enabling the parties to a suit to obtain pa pers which are in the possession of a third person, and it is doubtful whether that object can be legally effected by the de bene esse examination of a witness out of court." Ex p. Peck, (1853) 3 Blatchf. (U. S.) 113, 19 Fed. Cas. No. 10,885.

The compulsory character of the proceedings under this section was held not to have been affected by the waiver of notice and the fixing of the time by the agreement. Parker r'. Mareo, (1893) 136 N. Y. 585, citing Plimpton 1). Winslow, (1881) 9 Fed. Rep. 365.

Where the rule for taking depositions has expired, they may be taken under the Act. Buckingham r. Burgess, (1844) 3 McLean (U. S.) 368.

Statement not a deposition. — “A statement of facts in writing, without date or venue, purporting to have been signed by a witness, but giving neither age nor residence of such witness, which statement is not shown to have been made under oath, nor the oath waived, nor to have been taken on notice or in the presence of parties, nor to have been taken before any official authorized to administer oaths, and which is not accompanied by a certificate of a competent official, froin which compliance with any of the requisites for the taking of depositions in judicial proceedings can be inferred, is not a deposition, although so labeled and filed in a suit pending in court." Lutcher v. U. S., (C. C. A. 1896) 72 Fed. Rep. 968.

Notice. — There must be personal service on the adverse party or his attorney; stituted service, by leaving the copy at his dwelling house or usual place of abode, being authorized by the Act.” Carrington v. Stimson, (1853) 1 Curt. (C. S.) 437.

It was held, however, in Merrill 1. Dawson, (1818) Hempst. (U. S.) 563, where the notice of taking the dep ion was served by delivering a true copy thereof to some of the defendants, by leaving a true copy thereof with a white member of the family of another at his usual place of residence, and on other parties by delivering a true copy thereof to their counsel, they not being residents of the district, that this was good service of the notice.

“No counsel is obliged to receive a notice of taking a deposition while in attendance at court ; " and therefore it was held that a notice, which, if attended to, would render it impossible for the counsel to be present on the day the court commences, is invalid. Bell r. Nimmon, (1849) 4 McLean (C. S.) 539, 3 Fed. Cas. No. 1,259.

Attorney's authority to accept service. The authority of a certain party, H., to accept, as attorney and agent of the state, service for the defendant, having been revoked,

and another attorney not having been as yet appointed for the acceptance of such service, and notice having been served upon H. by the plaintiff of the taking of H.'s deposition, the suppression of such deposition on the ground of want of service on the defendant was refused, inasmuch as the authority of an attorney to accept service cannot be revoked until another attorney has been appointeil with power to accept. U. S. Life Ins. Co. v. Ross, (C. C. A. 1900) 102 Fed. Rep. 722.

Where the plaintiff had counsel in the action who resided in the very city where the deposition was taken, and, though his name was not entered on the record, he had acted in the former trial between the same parties in a like cause of action, which fact was known to the parties, it was held that such counsel should have been notified. Allen v. Blunt, (1846) 2 Woodb. & M. (U. S.) 121, 1 Fed. Cas. No. 217.

The objection that the notice, directed to the defendant himself, was served only upon his attorney-at-law in the cause, was overruled. Barrell v. Limington, (1830) 4 Cranch (C. C.) 70, 2 Fed. Cas. No. 1,040.

The objection that the judge had not certified that the defendants had no attorney within a hundred miles of the place of caption, he having certified that no notice was given to the adverse parties because they were not within a hundred miles, but having said nothing of their attorney, was overruled, inasmuch as the judge was not required to give any reason for not giving notice, and, if he had, his certificate would not be conclusive evidence of the fact that neither the party nor his attorney was within a hundred miles of the place of caption. Smith v. Coleman, (1821) 2 Cranch (C. C.) 237.

Where the judge did not certify whether the plaintiff was notified of the time and place of caption, nor the precise place of caption, the deposition was rejected. Pentleton v. Forbes, (1808) 1 Cranch (C. C.) 507, 19 Fed. Cas. No. 10,966.

The certificate of a notary before whom the deposition was taken having stated the existence of facts making it under this section unnecessary to give notice, it was held that it was not necessary that the notarial certificate should state those facts to have been the reason why no notice was given. Dinsmore v. Maroney, (1859) 4 Blatchf. (U. S.) 416, 7 Fed. Cas. No. 3,920.

The question of reasonableness of notice depends, obviously, upon the circumstances of each particular case.

The chief features to be considered in determining whether a certain notice is or is not reasonable are distance, number of witnesses, and facility of communication and to obtain proper representation." American Exch. Nat. Bank 1. Spokane Falls First Nat. Bank, (C. C. A. 1897) 82 Fed. Rep. 961.

Where the notice did not state the names of the witnesses whose depositions were to be taken, as required by the statutes, but it was presented to the plaintiff's attorneys, and they indorsed their acceptance on it, the notice was held sufficient. Sage 1. Tauszky,

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(1877) 6 Cent. L. J, 7, 21 Fed. Cas. No, and that if the plaintiff's counsel persisted in 12,214.

going on, in the face of the objection, he did Examination at place not named in notice. so at his own risk. Uhle v. Burnham, (1890)

Where all the parties were present at the 44 Fed. Rep. 729. examination, either personally or by attorney, Where, however, the defendants objected to the objection that the examination was taken the deposition on the ground that the re, at a place other than that named in the no- quirements of the Act as to giving previous tice was overruled. Gartside Coal Co. v. notice of the taking thereof had not been Maxwell, (1884) 20 Fed. Rep. 187.

complied with, but it appeared that a notice Deposition not taken on day named. – had in fact been served, and that counsel The fact that the deposition was not taken for the defendant had attended and crosson the day named in the notice is not suffi- examined the witness, the deposition was adcient reason for suppressing it. Sage v. mitted in evidence. Dinsmore v. Maroney, Tauszky, (1877) 6 Cent. L. J. 7, 21 Fed. Cas. (1859) 4 Blatchf. (U. S.) 416, 7 Fed. Cas. No. No. 12,214.

3,920; Mechanics Bank 1. Seton, (1828) 1 Pet. Heading substantially correct. - Where the (U. S.) 299, holding that cross-examination heading of the notice to take a deposition was waives irregularities; Shutte v. Thompson, as follows: “ United States of America, State (1872) 15 Wall. (U. S.) 151, holding that of Illinois, County of Cook, ss.: In the Cir- cross-examination without protest and silence cuit Court of the United States," it was held until death of witness was a waiver. that although not technically correct, perhaps, In uhat cases ex parte de positions without it was substantially so. Gormley v. Bunyan, notice are taken. It was held that under (1891) 138 U. S. 623.

the Act of Sept. 24, 1789, 1 Stat. L., ch. 20, Length of notice. It was held in Nicholls sec. 30, p. 88, ex parte depositions without v. White, (1802) 1 Cranch (C. C.) 58, 18 Fed. notice are to be taken only in cases of mere Cas. No. 10,235, and in Leiper v. Bickley, formal proof or of some isolated fact or in (1801) 1 Cranch (C. C.) 29, that a notice of circumstances of absolute necessity. Walsh one hour, and in Atkinson 1. Glenn, (1831) V. Rogers, (1851) 13 How. (U. S.) 283. 4 Cranch (C. C.) 134, 2 Fed. Cas. No. 610, Where a deposition is taken under the Act, that a notice of one day, of the taking of a without notice, it may be taken again if the deposition, in Alexandria, Va., was sufficient, party objecting is not satisfied that it is suffiwhere all the parties resided in that town. cient, it being no answer to such application

The court overruled the objection that the that the party objecting to the deposition was notice did not state the reason of taking the not present when it was taken. Goodhue . deposition. Sage v. Tauszky, (1877) 6 Cent. Bartlett, (1850) 5 McLean (U. S.) 186. L. J. 7, 21 Fed. Cas. No. 12,214; U. S. v. Attachment against witness. — Where an Louisville, etc., R. Co., (1883) 18 Fed. Rep. attaehment is sought against a witness re481. But see Harris v. Wall, (1849) 7 How. fusing to answer questions put to him on his (U. S.) 705.

examination de bene esse before a United Taken before another notary than

States commissioner on a subpena duces named. Where the notice of the taking of tecum as a witness in a suit pending in the the deposition read that it would be taken Circuit Court of another district, it must “before William G. Peckham, Esq., notary first be made clearly to appear that the compublic, or some other officer authorized by missioner has jurisdiction in the matter, and law to take depositions; ” and the deposition that the witness resides more than a hundred was, as a matter of fact, taken before another miles from the place of trial of the action, notary to be authorized by law so to act, it and also that the witness was called to testify was held that the notice conformed to this to facts material and relevant to the issue in section. Gormley v. Bunyan, (1891) 138 U.

the case.

Ex p. Peck, (1853) 3 Blatchf. (U. S. 623.

S.) 113, 19 Fed. Cas. No. 10,885. Depositions in three separate cities on same Upon a motion by the defendants in a suit day. — Where a notice was served that on pending in a Circuit Court, for an attachment the same day the plaintiff would proceed to against a witness for his refusal to obey a take the depositions of certain witnesses in subpæna issued by such court requiring him to three separate cities, the notice was held not appear before the United States commissioner to be such as is required by this section, and to be examined de bene esse as a witness in that the depositions were, therefore, suppressed. suit, on the ground that he resided more than Uhle v. Burnham, (1890) 44 Fed. Rep. 729. one hundred miles from the place of trial, the

Notice sufficient. — An objection that the court held that it could not look into the notice to the opposite party to attend at the matters set up to impeach the good faith of time and place of the caption did not require the proceedings, and was bound to presume him "to put interrogatories if he should that they were carried on in the usual way, think fit," was overruled. Bussard v. Cata- and to assume that this matter was a pending lino, (1823) 2 Cranch (C. C.) 421.

litigation, affecting the rights of the parties Irregularity not waived by cross-examina- thereto, who were entitled to all the usual tion. — The defendants appeared by counsel methods of obtaining testimony. Ex p: Judand objected to the admission of the deposi- son, (1853) 3 Blatchf. (U. S.) 89, 14 Fed. tions upon the express ground that the notice Cas. No. 7,561. given was unreasonable. Thereafter, how- Where a witness has been examined in chief ever, their counsel endeavored as best he by the party at whose instance the depositions could to cross-examine. It was held that by de bene esse were taken, and an adjournment such proceeding the objection was not waived, is had, such party cannot withdraw the pro


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