peared by his certificate that by consent the testimony in the case was taken in shorthand by a disinterested person under the notary's direction, and that the witnesses were examined by an attorney for the opposite party. Stewart v. Townsend, (1890) 41 Fed. Rep. 121. Where a certificate of a notary public contains the following statement, "That I am not of counsel nor interested in any manner whatever in this cause," it was held that there was substantial compliance with this section. American Exch. Nat. Bank v. Spokane Falls First Nat. Bank, (C. C. A. 1897) 82 Fed. Rep. 961 [citing Donahue v. Roberts, (1884) 19 Fed. Rep. 863; Gartside Coal Co. v. Maxwell, (1884) 20 Fed. Rep. 187].

A deposition taken under a rule of court and executed by a justice of the peace may be read. This section relates to depositions taken without a rule of court. Banert v. Day, (1814) 3 Wash. (U. S.) 243, 2 Fed. Cas. No. 836.

Proof of authority of officer. The objection having been made that no proof was given at the trial that the officer before whom the deposition was taken was such officer as he described himself to be in his certificate, it was held that "if, upon the face of the certificate, it appears that the person before whom the deposition was taken was an officer authorized by the Act of Congress to take the same, it was all that could be required in the first instance." Ruggles v. Bucknor, (1824) 1 Paine (U. S.) 358, 20 Fed. Cas. No. 12,115. The certificate and seal of the notary have been held sufficient proof of his authority. Dinsmore v. Maroney, (1859) 4 Blatchf. (U. S.) 416.

The objection that it did not appear, otherwise than by his own certificate, that the person before whom the deposition was taken had authority therefor, was overruled. Vasse v. Smith, (1811) 2 Cranch (C. C.) 31, 28 Fed. Cas. No. 16,896; Jasper v. Porter, (1841) 2 McLean (U. S.) 579.

It is not necessary, where a commission for the taking of depositions has been issued to a notary public and they are taken by him, that he should attach his official seal to the certificate. Brown v. Ellis, (1900) 103 Fed. Rep. 834.

Where the deposition was taken before a mayor, who certified as such, but did not affix his seal, the court presumed that he was mayor, as he might not have had any seal assuch. Price v. Morris, (1849) 5 McLean (U. S.) 5.

But where the officer taking the deposition has an official seal, and usually certifies his acts under that seal, his certificate (not accompanied by his official seal) that he is such officer is not sufficient." The court intimated, however, that the fact that he is such officer may be proved by parol testimony, as any other matter in pais. Paul v. Lowry, (1825) 2 Cranch (C. C.) 628, 18 Fed. Cas. 'No. 10,844.

sion thereof, the objection that the depositions were taken in term time not being within the statute. Union Pac. R. Co. v. Reese, (C. C. A. 1893) 56 Fed. Rep. 288.

Withdrawal and amendment of deposition. - Where there was some informality in the certificate of the mayor before whom a deposition was taken, and without objection being made by the counsel on the other side, and by permission of the court, the deposition was withdrawn from the files in order that the certificate might be amended according to the truth of the case, the objection that such withdrawal and amendment furnished suthcient ground for refusal to receive the deposition as evidence was overruled. Leatherberry v. Radcliffe, (1839) 5 Cranch (C. C.) 550, 15 Fed. Cas. No. 8.163; Gartside Coal Co. v. Maxwell, (1884) 20 Fed. Rep. 188.

Absence from court to take depositions. "It is only by consent of parties, or discretion of the court under peculiar circumstances, that, in ordinary cases of taking depositions, this prior and paramount duty in court should be required to be neglected or suspended, by absence in attending on the taking of depositions. They ought to be all taken, and the case prepared before the term begins." Allen v. Blunt. (1846) 2 Woodb. & M. (U. S.) 121, 1 Fed. Cas. No. 217.

Depositions taken without a commission or rule of court, in another state, more than one hundred miles from the place of trial, but conforming in all respects to the Act, were held admissible in evidence. Pettibone v. Derringer, (1818) 4 Wash. (U. S.) 215.

The court refused to suffer a deposition taken before the judge of the city court of Lexington, Ky., to be read. Foreman . Holmead, (1837) 5 Cranch (C. C.) 162, 9 Fed. Cas. No. 4,935.

Deposition taken in state court. - The deposition having been taken of a witness who resides within a hundred miles of the place of trial of a cause pending in a state court, pursuant to the state laws in that behalf, it was held that, under this section and under the Act of Congress of March 9, 1892, providing that it shall be lawful to take the deposition or testimony of witnesses in the mode prescribed by the laws of the state in which the court is held, the deposition was admissible when the cause was taken to the federal court, the witness being dead when the motion for suppression thereof was made. U. S. Life Ins. Co. v. Ross, (C. C. A. 1900) 102 Fed. Rep. 722.

Continuance. Where there was no opportunity to cross-examine the witness whose deposition was taken, continuance was granted. Dade . Young, (1803) 1 Cranch (C. C.) 123.

Fed. Rep. 216 [citing Ex 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 subpoena 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 papers 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 r. 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, from 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; “no substituted 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. (U. S.) 437.

It was held, however, in Merrill. Dawson. (1848) Hempst. (U. S.) 563, where the notice of taking the deposition 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 (U. 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 appointed 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 . 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 r. 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 v. Tauszky,

(1877) 6 Cent. L. J. 7, 21 Fed. Cas. No. 12,214.

Examination at place not named in notice. Where all the parties were present at the examination, either personally or by attorney, the objection that the examination was taken at a place other than that named in the notice was overruled. Gartside Coal Co. v. Maxwell, (1884) 20 Fed. Rep. 187.

Deposition not taken on day named. The fact that the deposition was not taken on the day named in the notice is not sufficient reason for suppressing it. Sage v. Tauszky, (1877) 6 Cent. L. J. 7, 21 Fed. Cas. No. 12,214.

66

Heading substantially correct. Where the heading of the notice to take a deposition was as follows: "United States of America, State of Illinois, County of Cook, ss.: In the Circuit Court of the United States," it was held that although not technically correct, perhaps, it was substantially so. Gormley v. Bunyan, (1891) 138 U. S. 623.

Length of notice. It was held in Nicholls v. White, (1802) 1 Cranch (C. C.) 58, 18 Fed. Cas. No. 10,235, and in Leiper v. Bickley, (1801) 1 Cranch (C. C.) 29, that a notice of one hour, and in Atkinson v. Glenn, (1831) 4 Cranch (C. C.) 134, 2 Fed. Cas. No. 610, that a notice of one day, of the taking of a deposition, in Alexandria, Va., was sufficient, where all the parties resided in that town.

The court overruled the objection that the notice did not state the reason of taking the deposition. Sage v. Tauszky, (1877) 6 Cent. L. J. 7, 21 Fed. Cas. No. 12,214; U. S. v. Louisville, etc., R. Co., (1883) 18 Fed. Rep. 481. But see Harris v. Wall, (1849) 7 How. (U. S.) 705.

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Taken before another notary than named. Where the notice of the taking of the deposition read that it would be taken "before William G. Peckham, Esq., notary public, or some other officer authorized by law to take depositions; " and the deposition was, as a matter of fact, taken before another notary to be authorized by law so to act, it was held that the notice conformed to this section. Gormley v. Bunyan, (1891) 138 U. S. 623.

Depositions in three separate cities on same day. Where a notice was served that on the same day the plaintiff would proceed to take the depositions of certain witnesses in three separate cities, the notice was held not to be such as is required by this section, and the depositions were, therefore, suppressed. Uhle v. Burnham, (1890) 44 Fed. Rep. 729. Notice sufficient.· - An objection that the notice to the opposite party to attend at the time and place of the caption did not require him "to put interrogatories if he should think fit," was overruled. Bussard v. Catalino, (1823) 2 Cranch (C. C.) 421.

Irregularity not waived by cross-examination. — The defendants appeared by counsel and objected to the admission of the depositions upon the express ground that the notice given was unreasonable. Thereafter, however, their counsel endeavored as best he could to cross-examine. It was held that by such proceeding the objection was not waived,

and that if the plaintiff's counsel persisted in going on, in the face of the objection, he did so at his own risk. Uhle v. Burnham, (1890) 44 Fed. Rep. 729.

Where, however, the defendants objected to the deposition on the ground that the requirements of the Act as to giving previous notice of the taking thereof had not been complied with, but it appeared that a notice had in fact been served, and that counsel for the defendant had attended and crossexamined the witness, the deposition was admitted in evidence. Dinsmore v. Maroney, (1859) 4 Blatchf. (U. S.) 416, 7 Fed. Cas. No. 3,920; Mechanics Bank r. Seton, (1828) 1 Pet. (U. S.) 299, holding that cross-examination waives irregularities; Shutte v. Thompson, (1872) 15 Wall. (U. S.) 151, holding that cross-examination without protest and silence until death of witness was a waiver.

In what cases ex parte depositions without notice are taken. - It was held that under the Act of Sept. 24, 1789, 1 Stat. L., ch. 20, sec. 30, p. 88, cx parte depositions without notice are to be taken only in cases of mere formal proof or of some isolated fact or in circumstances of absolute necessity. Walsh v. Rogers, (1851) 13 How. (U. S.) 283.

Where a deposition is taken under the Act, without notice, it may be taken again if the party objecting is not satisfied that it is sufficient, it being no answer to such application that the party objecting to the deposition was not present when it was taken. Goodhue t. Bartlett, (1850) 5 McLean (U. S.) 186.

Attachment against witness. Where an attachment is sought against a witness refusing to answer questions put to him on his examination de bene esse before a United States commissioner on a subpoena duces tecum as a witness in a suit pending in the Circuit Court of another district, it must first be made clearly to appear that the commissioner has jurisdiction in the matter, and that the witness resides more than a hundred miles from the place of trial of the action, and also that the witness was called to testify to facts material and relevant to the issue in the case. Ex p. Peck, (1853) 3 Blatchf. (U. S.) 113, 19 Fed. Cas. No. 10,885.

Upon a motion by the defendants in a suit pending in a Circuit Court, for an attachment against a witness for his refusal to obey a subpoena issued by such court requiring him to appear before the United States commissioner to be examined de bene esse as a witness in that suit, on the ground that he resided more than one hundred miles from the place of trial, the court held that it could not look into the matters set up to impeach the good faith of the proceedings, and was bound to presume that they were carried on in the usual way, and to assume that this matter was a pending litigation, affecting the rights of the parties thereto, who were entitled to all the usual methods of obtaining testimony. Ex p. Judson, (1853) 3 Blatchf. (U. S.) 89, 14 Fed. Cas. No. 7,561.

Where a witness has been examined in chief by the party at whose instance the depositions de bene esse were taken, and an adjournment is had, such party cannot withdraw the pro

ceedings; and an order will be granted upon application by an interested party, for an attachment to compel the witness to attend upon cross-examination. In re Rindskopf, (1885) 24 Fed. Rep. 542.

Upon due proof of service of a subpoena upon a witness, requiring his attendance before a commissioner upon an examination de bene esse, and a certificate of the commissioner that the witness did not attend before him, it is proper that an attachment should issue therefor. Ex p. Humphrey, (1851) 2 Blatchf. (U. S.) 228, 12 Fed. Cas. No. 6,867.

The court refused to grant an attachment against a witness examined de bene esse in a pending suit, for refusal to answer a question, where there was no evidence before the court tending to show the connection of the inquiry with the subject-matter of the action or defense. In re Judson, (1853) 3 Blatchf. (U. S.) 148, 14 Fed. Cas. No. 7,563.

The subpoena having been issued without any preliminary evidence before the commissioner showing this to be a case in which a de bene esse examination could be lawfully had, the want of such proof was held a fatal objection to the issuing of an attachment. Er p. Peck, (1853) 3 Blatchf. (U. S.) 113.

A commissioner of the Circuit Court has not the power to issue a writ of habeas corpus to take from jail a prisoner committed by authority of the United States and bring him before the commissioner, for the purpose of giving his deposition before such commissioner, to be used in a cause pending in the

District Court. Ex p. Barnes, (1846) 1 Sprague (U. S.) 133, 2 Fed. Cas. No. 1,010. Subpœna - How obtained. "The party wishing to compel the attendance goes to the office of the clerk of the court where the trial is to be had, and obtains from him an origi nal writ of subpoena and a copy, no application to the judge therefor being required." ning v. Boyle, (1901) 112 Fed. Rep. 397.

Hen

For depositions to be used in another federal court. There is no provision in the federal statutes conferring upon the clerk of the Circuit Court power to issue subpoenas for the appearance of witnesses and for the taking of their depositions before a notary, such depositions to be used in another federal court, except by commission, under this section. Stevens . Missouri, etc., R. Co., (1900, 104 Fed. Rep. 934.

For examination outside the district. Under the provisions of this section a witness can, under any circumstances, be compelled to appear before a notary for examination outside the district in which the suit is pending. Davis v. Davis, (1898) 90 Fed. Rep. 791, citing Ex p. Judson, (1853) 3 Blatchf. (U. S.) 89, 14 Fed. Cas. No. 7,561.

The production of the witness's books and papers merely to refresh his memory cannot be compelled, although, where his books and papers would be competent and material as evidence at the trial, their production can be compelled. U. S. v. Tilden, (1879) 10 Ben. (U. S.) 566, 28 Fed. Cas. No. 16,522.

This section was amended "so as to read as" above given by the Act of May 23, 1900, ch. 541, 31 Stat. L. 182. Originally this section was as follows:

"SEC. 864. Every person deposing as provided in the preceding section, shall be cautioned and sworn to testify the whole truth, and carefully examined. His testimony shall be reduced to writing by the magistrate taking the deposition, or by himself in the magistrate's presence, and by no other person, and shall, after it has been reduced to writing, be subscribed by the deponent." Act of Sept. 24, 1789, ch. 20, 1 Stat. L. 88; Act of May 9, 1872, ch. 146, 17 Stat. L. 89.

Witness to be "cautioned and sworn," etc. -It not appearing from the certificate of the officer before whom the deposition was taken that the witness was cautioned and sworn, * and carefully examined," the deposition was rejected. Luther v. Schooner Merritt Hunt. (1852) Newb. Adm. 4, 15 Fed. Cas. No. 8.610; Wilson Sewing Mach. Co. r. Jackson, (1877) 1 Hughes (U. S.) 295, 30 Fed. Cas. No. 17.853: In re Thomas, (1888) 35 Fed. Rep. 822 [citing Bell v. Morri

son, (1828) Pet. (U. S.) 351; Cook v. Burnley, (1867) 11 Wall. (U. S.) 659].

In Brown v. Piatt, (1821) 2 Cranch (C. C › 253, however, the objection that the magi trate before whom the deposition was taken had not certified that he cautioned" {' witness, but had only stated that the witnes was "examined and solemnly aflirmed," w overruled.

See also Edmondson v. Barrell, (1821) Cranch (C. C.) 228, where an objection was taken to the admission of the deposition because the judge taking it did not expressly certify that the deponent was examine, cautioned, and sworn by him, but certifie! that "the said witness, being of full age, an! being carefully examined, and cautioned, and sworn to speak the whole truth, says in manner and form following," etc., and the court overruled the objection and allowed the deposition to be read, because it was plainly to be understood that the deponent was examined, cautioned, etc., by the judge; and Moore . Nelson, (1844) 3 McLean (U. S.) 383, where the mayor of a city before whom the deposition was taken did not certify that

the witness was cautioned, but that he was sworn in pursuance of the Act," and the deposition was allowed.

Form of oath." If there be a statutory form of oath in the place where the witness is examined, that is the form to be used upon an examination under section 864, R. S., unless the deponent expresses conscientious scruples respecting that form." Wilson Sewing Mach. Co. v. Jackson, (1877) 1 Hughes (U. S.) 295.

It is not sufficient that the witness was sworn to testify "the truth," instead of "the whole truth." Rainer v. Haynes, (1854) Hempst. (U. S.) 689, 20 Fed. Cas. No. 11,536; Pentleton v. Forbes, (1808) 1 Cranch (C. C.) 507, 19 Fed. Cas. No. 10,966; Wilson Sewing Mach. Co. v. Jackson, (1877) 1 Hughes (U. S.) 295, 30 Fed. Cas. No. 17,853, holding that it was not sufficient that the witness was sworn to make true answers to the interrogatories propounded to him; In re Thomas, (1888) 35 Fed. Rep. 822 [citing Bell v. Morrison, (1828) 1 Pet. (U. S.) 351; Cook v. Burnley, (1867) 11 Wall. (U. S.) 659]; Garrett v. Woodward, (1819) 2 Cranch (C. C.) 190, 10 Fed. Cas. No. 5,253, holding that the fact that one of the interrogatories was in these words, "if you know anything further, material to plaintiff or defendant in the cause, mention it, and conceal nothing," was immaterial.

But see Bussard v. Catalino, (1823) 2 Cranch (C. C.) 421, where the objection that the magistrate before whom the deposition was taken had not certified that the witness was sworn to testify the whole truth "in the matter in controversy was overruled.

Reduced to writing. Before the Act of May 23, 1900, amending section 864, and authorizing the depositions to be taken in typewriting, and permitting them to be reduced to writing or typewriting by some person other than the officer taking them, the following cases held that a deposition taken under the section could not be read unless the judge certified that it was reduced to writing either by himself or by the witness in his presence. Pettibone v. Derringer, (1818) 4 Wash. (U. S.) 215; Blake v. Smith, 3 Fed. Cas. No. 1,502; Marstin v. McRea, (1854) Hempst. (U. S.) 688, 16 Fed. Cas. No. 9,141; Rainer v. Haynes, (1854) Hempst. (U. S.) 689, 20 Fed. Cas. No. 11,536; Bell v. Morrison, (1828) 1 Pet. (U. S.) 351; Donahue v. Roberts, (1884) 19 Fed. Rep. 863.

The objection that the magistrate before whom the deposition was taken did not certify that such deposition was reduced to writing by the witness in the magistrate's presence, although it was certified to have been reduced to writing by the witness and subscribed by him in the presence of the magistrate, was upheld, but the court thought the inference strong that the deposition was written in the presence of the magistrate and permitted him to be sworn to prove the fact. Vasse v. Smith, (1811) 2 Cranch (C. C.) 31, 28 Fed. Cas. No. 16,896; Edmondson v. Barrell, (1821) 2 Cranch (C. C.) 228, 8 Fed. Cas. No. 4,284.

Where the magistrate before whom the

deposition was taken did not certify that the part of the testimony which was reduced to writing by the witness himself was so reduced in the presence of the magistrate, but only that the testimony was reduced to writing by the witness and the magistrate, the deposition was admitted. Bussard v. Catalino, (1823) 2 Cranch (C. C.) 421.

The objection that the magistrate did not certify that the deponent subscribed the deposition in his presence, but that he subscribed it after it was reduced to writing by the magistrate, was overruled. Centre v. Keene, (1820) 2 Cranch (C. C.) 198, 5 Fed. Cas. No. 2,553.

The objection that the judge who took the deposition did not certify that the deposition, reduced to writing by him, was so written in the presence of the witness, was overruled. Vasse v. Smith, (1811) 2 Cranch (C. C.) 31, 28 Fed. Cas. No. 16,896: Van Ness v. Heineke, (1821) 2 Cranch (C. C.) 259.

The signature of the witness being on the deposition, it is sufficient if the officer before whom the deposition is taken certify that it was reduced to writing by him and the deposition taken before him. Voce v. Lawrence, (1847) 4 McLean (U. S.) 203.

Where there was no certificate by the magistrate that he had reduced the testimony to writing himself, or that it was done by the witness in his presence, the omission was held to be fatal. Cook v. Burnley, (1867) 11 Wall. (U. S.) 659.

Depositions not admissible. Where counsel for each party attended on the examination, and the depositions as given were taken in shorthand and reduced to writing by the stenographer and clerk of the magistrate before whom they were taken, in his presence and in the presence of the witnesses and the counsel, the deposition of each witness being carefully read over to and subscribed by each witness in the presence of the magistrate and in the presence of such of the counsel and parties of the cause as were in attendance, it was held that this was not such a strict compliance with the statute as might be required, if not waived, to make a deposition so taken in invitum admissible. Brown r. Ellis, (1900) 103 Fed. Rep. 834, citing Cook v. Burnley, (1867) 11 Wall. (U. S.) 659. These cases were, however, before the amending Act of May 23, 1900, supra.

A deposition which is taken down in questions and answers by a stenographer, and is not reduced to writing in the presence of the witness, nor read over to or by him, is not a deposition properly taken, under this statute, and is not admissible in evidence against the objections of either party. Moller v. U. S., (C. C. A. 1893) 57 Fed. Rep. 490, citing Cook v. Burnley, (1867) 11 Wall. (U. S.) 659. These cases were, however, before the amending Act of May 23, 1900, supra.