Name of party erroneously given in deposition. Where the name of the plaintiff or defendant is correctly stated in the style of the cause, the fact that his name was erroneously stated in the deposition, reference, however, being made to him as plaintiff or defendant therein, will not vitiate the deposition. Voce v. Lawrence, (1847) 4 McLean (U. S.) 203, 28 Fed. Cas. No. 16,979. Irregularity waived. Where part of the testimony was in manuscript and part was to be in the handwriting of the magistrate, but there was no certificate as to this, it was held that there was a material irregularity; and, inasmuch as the certificate was made after the opposite party had attended, and its contents could not have been known until the deposition was opened, he could not be held to have waived this defect; but since neither the party who instituted the taking of the deposition nor his counsel was at fault, leave was granted the parties to reexamine the witnesses. In re Thomas, (1888) 35 Fed. Rep. 822. The testimony was taken in a continuous narrative on a typewriter. The opposite party was present, saw the statement taken, examined it, made objections to it as a whole and to parts, but interposed no objection whatever to the fact that it was in a narrative and continuous form taken upon the typewriter. It was held that the irregularity was waived. In re Thomas, (1888) 35 Fed. Rep. 822. This case was, however, before the amending Act of May 23, 1900, supra. Deposition written and signed before oath. Whether a deposition which was written and signed by the witness before the oath was administered to him is admissible, quære. Dodge v. Israel, (1822) 4 Wash. (U. S.) 323. Sec. 865. [Transmission to the court of depositions de bene esse.] Every deposition taken under the two preceding sections shall be retained by the magistrate taking it, until he delivers it with his own hand into the court for which it is taken; or it shall, together with a certificate of the reasons as aforesaid of taking it and of the notice, if any, given to the adverse party, be by him sealed up and directed to such court, and remain under his seal until opened in court. But unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause. [R. S.] 88. Act of Sept. 24, 1789, ch. 20, 1 Stat. L. This section is a re-enactment of part of section 30 of the Act of Sept. 24, 1789, I Stat. L. 88, and is to have the same construction as to the time at which the depositions are to be opened. U. S. v. Tilden, (1878) 10 Ben. (U. S.) 170, 28 Fed. Cas. No. 16,520. Certification of all necessary facts. - A magistrate before whom the deposition was taken must certify to all the facts necessary to make the deposition good evidence under the Act of Congress. Jones v. Knowles, (1808) 1 Cranch (C. C.) 523. The certificate of the clerk of the circuit court where the commissioner before whom the depositions were taken was appointed, was in due form, the only objection to it being that the presiding judge had not certified that the attestation was in due form. It was held that a copy of the record, in order that it may be evidence, must have the certificate of the presiding judge. Tooker v. Thompson, (1842) 3 McLean (U. S.) 92. Omission of word "not."-The omission in the magistrate's certificate of the word "not was held not to invalidate the deposition. Bussard V. Catalino, (1823) 2 Cranch (C. C.) 421. "Sealed up.”—Where the envelope was sealed with two seals and the name of the magistrate written over each seal, it was held that the deposition was "sealed up," within the meaning of this section, by the magistrate. Thorp v. Orr, (1822) 2 Cranch (C. C.) 335. The witness, who resided more than a hundred miles from the place of trial, but was within reach of the process of the court, had been subpoenaed, but did not attend, although he was in good health. The magistrate who took the deposition did not deliver it with his own hands into the court, nor did he seal it up and direct it to the court as the statute requires. The court refused to allow the deposition to be read. Jones v. Neale, (1796) 1 Hughes (U. S.) 268, 13 Fed. Cas. No. 7,483. Where the deposition, together with the reasons of its being taken and of notice, etc., was not sealed up by the magistrate taking it and directed to the court, the deposition was not admitted. Jones v. Neale, (1796) 2 Mart. (N. Car.) 136; Shankwiker v. Reading, (1847) 4 McLean (U. S.) 240. The officer taking the deposition sealed up the same, marked the style of the case upon the envelope, made the usual indorsement across the seal, and addressed the envelope to the clerk of the court, who duly received it through the mail. Such officer, however, did not certify that he delivered the deposition to the court in which the cause was pending, or that he sealed it up and deposited it in the post-office. The certificate was held to be sufficient. Egbert v. Citizens' Ins. Co., (1881) 7 Fed. Rep. 47. Where certain depositions reached the court in gummed envelopes, and not under the seal of the officer before whom they were taken, it was held they could not be used, as every form of the Act must be complied with; but a deposition which was sealed with the impress of the seal of the Adams Express Company, and had written across it the name of the commissioner, was not suppressed, as a person may adopt any seal as his own, or anything in place of a seal." In re Thomas, (1888) 35 Fed. Rep. 337. The deposition was taken before a commissioner, who was also clerk of the court. The proctor of the adverse party knew that the deposition was being taken before such commissioner. The objection that the deposition was not sealed up was overruled. Nelson v. Woodruff, (1861) 1 Black (U. S.) 156. Where the envelope in which the deposition was enclosed was partly open at one end when received by the clerk of the court, the deposition otherwise being properly sealed and returned into court, the deposition was received, the appearance of the envelope showing that transmission in the mails was the cause of the partial opening. Eiffert v. Craps, (1890) 44 Fed. Rep. 164. 66 Return of deposition. The fact that it was agreed by a stipulation between the parties that the testimony of the witness might be taken subject to all legal objections for irrelevancy and incompetency, but all objections as to the form and manner of taking being hereby waived, and that said deposition may be used as evidence on the trial of this cause, as if regularly taken under the Act of Congress," does not dispense with the necessity of the return of the deposition, in all respects, as provided. Livingston v. Pratt, (1857) Brown Adm. 66, 15 Fed. Cas. No. 8,417. Where an objection was raised in a case of a deposition de bene esse taken on behalf of the United States "that the deposition was not taken and returned according to law," this objection was held, in the appellate court, as relating to the deposition as a deposition in chief, and therefore the attorney for the United States was bound to prove the circumstances entitling him to read it as such deposition de bene esse. The Schooner Thomas & Henry, (1818) 1 Brock. (U. S.) 367. The fact that the deposition was not directed to the court, but to the judges thereof, is immaterial. Thorp . Orr, (1822) 2 Cranch (C. C.) 335, 23 Fed. Cas. No. 14,006. Opened in court.". Where the objection was taken that the depositions were opened out of court without the consent thereto of the opposite party, it was held to be well taken. The Roscius, (1873) Brown Adm. 442, 20 Fed. Cas. No. 12,042, citing Beale v. Thompson, (1814) 8 Cranch (U. S.) 70. The party who initiated the proceedings for the taking of testimony de bene esse appears to have no right to the custody or suppression of the deposition. "The authority taking it appears to represent the court pro hac vice, for the purpose of authenticating the testimony of the witness, and preserving it for the trial, according to its admissibility and weight." In re Rindskopf, (1885) 24 Fed. Rep. 542. Where both parties have examined the witness under a deposition de bene esse, the party who caused the deposition to be taken cannot direct the commissioner, before whom it was taken, to withhold such deposition; and where the commissioner, acting under instructions from such party, does so withhold the deposition, the court will grant an order for the return thereof, notwithstanding the fact that the testimony taken does not suit such party; for "the deposition in the hands of the commissioner is just as much beyond the control of the parties as though the same had been filed in court." Grand Haven First Nat. Bank v. Forest, (1890) 44 Fed. Rep. 246. The deposition having been retained in the hands of defendant's attorney for a long time, and being placed on file on the morning of the trial for the first time, the court held that it could not be read in evidence. Livingston . Pratt, (1857) Brown Adm. 66, 15 Fed. Cas. No. 8,417. Where depositions de bene esse have been taken, the fact that one party objects is no ground for refusing to open them before trial upon the application of the other party. U. S. v. Tilden, (1878) 10 Ben. (U. S.) 170, 28 Fed. Cas. No. 16,520. The law did not intend that either party should have possession of the deposition until it should be received by the clerk and opened by the general or special order of the court." Shankwiker . Reading, (1847) 4 McLean (U. S.) 240. Where a deposition was opened by the clerk of the court to whom it was directed, he supposing it to be a letter respecting his official business, it was held that it was not admissible. Beale v. Thompson, (1814) 8 Cranch (U. S.) 70. Where consent is given to the opening of the deposition out of court, such consent must be in writing. The Roscius, (1873) Brown Adm. 442, 20 Fed. Cas. No. 12,042. Waiver of objections. Where the deposition is taken against a party, and he, under an express declaration, waives an objection thereto, this general waiver must be understood as extending to the deposition in the character in which it was intended to be taken, and not as giving it a new character not intended by the party taking it; and therefore in the case of a deposition de bene cssc, where all objections were waived by the opposing party, it was held that it was not made a deposition in chief by such waiver. The Schooner Thomas & Henry, (1818) 1 Brock. (U. S.) 367. See also Kansas City. etc., R. Co. v. Stoner, (C. C. A. 1892) 51 Fed. Rep. 649. Where the signature to the deposition is waived, the deposition may be read. Ketland t. Bissett, (1804) 1 Wash. (U. S.) 144. The package containing the depositions was received by mail addressed to the justice of the Circuit Court, being sealed with three seals, and had indorsed on it a request by the notary who sent it for its return to him as notary, there being no indorsement of the name of the cause. It was opened upon its receipt by one of the judges of the court, and immediately thereafter closed and placed in the custody of the clerk, with notice of its character. The attorneys for the parties having consented to the opening and publication of the deposition without qualification, except "without prejudice to any objections to the enclosed deposition other than relating to publication and opening, which is hereby waived," it was held by the court that irregularities under the section were waived thereby. Stewart . Townsend, (1890) 41 Fed. Rep. 121. The presumption of a waiver of objections to the witness's competency will arise if such objections are not made by the party in attendance at the time of taking the depositions under the Act, if such objections are known to him; but if such objections were not so known at the time of taking the deposition, they may be raised when it is read. U. S. t. One Case Hair Pencils, (1825) 1 Paine (U. S.) 400. Where it appeared that the witness was an aged man when his deposition was taken; that he had died before the trial; that one of the counsel for the opposite party had accepted notice of the taking of the deposition, and had attended at the taking and crossexamination of the witness; that he made no objection either to the sufficiency of the oath, to the reasons for taking the deposition, or to the competency of the magistrate; and that, although the deposition had been filed in the record of the cause more than a year before the trial, no exceptance had been taken to it, consent to the manner of taking the deposition must be presumed. Shutte v. Thompson, (1872) 15 Wall. (U. S.) 151. Depositions admitted. Where notice of the time and place of taking depositions was accepted by the counsel for the defendant; both parties appeared by counsel; the witnesses were examined and cross-examined; no objection was made during the taking of the depositions to the competency of the officer before whom they were taken, or to the regularity of the proceedings in any way, the signatures of the witnesses to the depositions being waived by mutual consent; and it being further agreed by counsel for both parties that the commissioner taking the depositions should transmit them by mail to the clerk of the proper court; and such depositions having been duly received, and by agreement opened by the counsel for the parties; the objections to receiving the depositions not having been made until the trial of the case before the jury had progressed three days, such objections were overruled. Bird v. Halsy, (1898) 87 Fed. Rep. 671. it was held that the deposition taken before a certain person who certified himself to be "a commissioner appointed by the District Court of the United States for the eastern district of Louisiana under and by virtue of the Act of Congress entitled An Act for the more convenient taking of affidavits and bail in civil causes depending in the courts of the United States.'" such deposition being sealed up by the commissioner, and directed to the clerk of the Circuit Court of the District of Columbia for the county of Washington, was receivable, although not further authenti cated. Whitney v. Huntt, (1837) 5 Cranch (C. C.) 120. Where, in an action in the District Court on a maritime contract, a commissioner who took the deposition of the master of the ship was a clerk of the court, and where the consignee's proctor knew that the deposition had been taken, the objections that preliminary proof had not been made of the materiality of the witness, and that the deposition was not sealed up, and that no notice had been given of its being filed, were overruled. Nelson . Woodruff, (1861) 1 Black (U. S.) 156. Where a motion has been made to suppress depositions, it is not a sufficient answer thereto that the parties moving have themselves given a similar notice for taking depositions. Uhle v. Burnham, (1890) 44 Fed. Rep. 729. Presumption that residence continued. Where a deposition is taken de bene esse under this section, the witness living more than one hundred miles from the place of trial when it was taken, "it will be presumed that he continued to live there at the time of the trial, and no further proof on that subject need be furnished by the party offering the deposition, unless this presumption shall be overcome by proof from the other side. But if it be overcome, and the party has knowledge of his power to get the witness in time to enable him to secure an attendance at the trial, he must do so, and the deposition will be excluded." Depositions taken under section 866, however, do not fall within this rule. Whitford v. Clark County, (1886) 119 U. S. 522. Where, at the time of taking the deposition, the witness lived in Minnesota, more than a hundred miles from the place of trial in Texas, and there was no presumption or proof that he had since come within a hundred miles of the said place of trial, his deposition to be used in a federal court in Texas was received, it being presumed that he continued to live in Minnesota at the time of the trial. Texas, etc., R. Co. v. Reagan, (C. C. A. 1902) 118 Fea. Rep. 815 [citing Whitford . Clark County, (1886) 119 U. S. 522, and Patapsco Ins. Co. v. Southgate, (1831) 5 Pet. (U. S.) 604]. The magistrate before whom the deposition was taken certified that it appeared to him that the adverse party and his counsel resided upwards of one hundred miles from the place of taking the deposition. It was held that this was a sufficiently positive averment that the adverse party and his counsel were at the time more than one hundred miles from such place. Banks v. Miller, (1809) 1 Cranch (C. C.) 543. Witness gone to a greater distance," etc. -The witness lived more than one hundred miles from the place of trial, and was about to leave, and did leave, the District of Columbia for a place distant more than one hundred miles from such place of trial, not to return before the time of trial. It being objected that no subpoena had been issued for the witness, it was held that the deposition might be read, the court being of opinion that it was sufficient to show, at the time of trial, that the witness was "gone to a greater distance than one hundred miles from the place of trial," and the return of a subpœna non est is only one means of making that fact appear to the satisfaction of the court, but not the only means, the fact of the witness's presence within the District before the time of trial, but after the taking of the deposition, not being material. Leatherberry t. Radcliffe, (1839) 5 Cranch (C. C.) 550. The authority or jurisdiction conferred on the magistrate by this Act is special, and confined within certain limits or conditions, and the facts calling for the exercise of it should appear upon the face of the instrument, and not be left to parol proof; and, therefore, where under the Act of Sept. 24, 1789, 1 Stat. L., ch. 20, sec. 30, the notice given by the magistrate stated only that the witness was about to depart the state," and not that he was bound on a voyage to sea, or about to go out of the United States, or a hundred miles from the place of trial, the deposition was refused, parol proof not being allowed at the trial that he was about to leave the United States. Harris . Wall, (1849) 7 How. (U. S.) 693, citing Bell v. Morrison, (1828) 1 Pet. (U. S.) 351. .. Witness moving within one hundred miles. - After the deposition was taken, but before trial, the witness moved within a hundred miles of the place of trial. It was held that, notwithstanding this fact, the deposition would be received, unless such removal was shown and also that this removal was known to the opposing party in sufficient time to issue a subpoena and have the witness served. Russell v. Ashley, (1847) Hempst. (U. S.) 546, 21 Fed. Cas. No. 12,150. Where witness living more than one hundred miles from place of trial had been at latter place. - It is no objection to reading the deposition of a witness who lives in another state more than a hundred miles from the place of trial, taken under a rule of court, that he had been in the place of trial during the sitting of the court, where it appeared that the fact of his being in the city was unknown to the party at whose instance the deposition was taken. Quære, whether, if the party had known of his presence at the place of trial, the case would have been altered. Pettibone . Derringer, (1818) 4 Wash. (U. S.) 215, 19 Fed. Cas. No. 11,043. But see Weed . Kellogg, (1853) 6 McLean (U. S.) 44, where a deposition was excluded, being objected to on the ground that the witness was present at the place of trial. Where a witness does not live at a greater distance than one hundred miles from the place of trial, it will be incumbent on the party for whom the deposition is taken to show at the trial that the disability of the witness to attend personally continues, such disability being supposed to be temporary and the only impediment to a compulsory attendance; but the inhibition against receiving the deposition unless disability be made to appear at the trial "does not extend to the deposition of a witness living at a greater distance from the place of trial than one hundred miles, he being considered permanently beyond a compulsory attendance. The deposition in such case may not always be absolute, for the party against whom it is to be used may prove the witness has removed within the reach of a subpoena after the deposition was taken; and if that fact was known to the party, he would be bound to procure his personal attendance. The onus, however, of proving this would rest upon the party opposing the admission of the deposition in evidence." Patapsco Ins. Co. r. Southgate, (1831) 5 Pet. (U. S.) 604. The fact that it did not appear either in the deposition or in the certificate that th party was not then a resident of the place of trial, or did not live within a hundred miles thereof, was not held sufficient to suppress the deposition. Sage . Tauszky, (1877) 6 Cent. L. J. 7, 21 Fed. Cas. No. 12,214. Sec. 866. [Depositions under a dedimus potestatem and in perpetuam, etc.] In any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage; and any circuit court, upon application to it as a court of equity, may, according to the usages of chancery, direct depositions to be taken in perpetuam rei memoriam, if they relate to any matters that may be cognizable in any court of the United States. And the provisions of sections eight hundred and sixty-three, eight hundred and sixty-four, and eight hundred and sixty-five, shall not apply to any deposition to be taken under the authority of this section. [R. S.] Act of Sept. 24, 1789, ch. 20, 1 Stat. L. 88; Act of May 9, 1872, ch. 146, 17 Stat. L. 89. Depositions according to state usage are authorized by the Act of March 9, 1892, ch. 14, given infra, p. 22. "The method of taking testimony by commission is cumbersome and unsatisfactory, and not resorted to when the convenient method of taking proof prescribed by section 863, Rev. Stat. U. S., is available." Henning v. Boyle, (1901) 112 Fed. Rep. 397. Necessity must be shown. The necessity for the issuing of a dedimus potestatem must be made to appear to the court, a commission not being granted to all litigants, but only when the necessity is made to appear. Randall r. Venable, (1883) 17 Fed. Rep. 162; C. S. v. Cameron, (1883) 15 Fed. Rep. 794. Where not granted. Where the testimony can be taken by deposition de bene esse, a dedimus potestatem will not be granted under this section. Turner v. Shackman, (1886) 27 Fed. Rep. 183. The petition having been filed, and no answer having been filed or being yet due, a dedimus potestatem will not be granted under this section, the object being evidently to see what the defendant will testify to before he is put upon the witness stand in presence of the jury. Turner v. Shackman, (1886) 27 Fed. Rep. 183. Merely inquisitorial proceeding. "The court will not sanction a merely inquisitorial proceeding" in an application under this section. Flower v. MacGinniss, (C. C. A. 1901) 112 Fed. Rep. 377. A bill to perpetuate testimony will not be sustained, if it be possible that the matter in question can, by the party who files the bill, be made the subject of immediate judicial investigation." New York, etc., Coffee Polishing Co. r. New York Coffee Polishing Co., (1881) 9 Fed. Rep. 578, citing Angell v. Angell, (1822) 1 Sim. & St. 89. The mode of executing commissions out of a federal court is governed, not by the state statute, but by this section. U. S. v. Pings, (1880) 4 Fed. Rep. 714; Turner v. Shackman, (1886) 27 Fed. Rep. 183. But see contra, U. S. v. Cameron, (1883) 15 Fed. Rep. 794; and Jones v. Oregon Cent. R. Co., (1875) 3 Sawy. (U. S.) 523, holding that the law of the state controls the manner of the qualification of the witness. Sections 863 and 865 are not in any way applicable to a deposition taken upon a dedimus potestatem or commission under this section. Jones v. Oregon Cent. R. Co., (1875) 3 Sawy. (U. S.) 523, 13 Fed. Cas. No. 7,486. Depositions taken under a dedimus potestatem, under this section, are not to be considered as taken de bene esse. Sergeant v. Biddle, (1819) 4 Wheat. (U. S.) 508. "The words 'common usage' in regard to a suit in equity refer to the practice in courts of equity." Bischoffscheim r. Baltzer, (1882) 10 Fed. Rep. 1; U. S. v. Parrott, (1859) McAll. (U. S.) 447, 27 Fed. Cas. No. 15,999; Green r. Compagnia Generale Italiana, etc., (1897) 82 Fed. Rep. 490, holding that "the usages referred to are evidently those of the English chancery, no different chancery practice being then or since established here, in that regard." Where the attorney for the plaintiff wrote down the answers for the commissioner at his request, the defendant not being represented, it was held that the deposition was not taken "according to common usage," under this section, notwithstanding the fact that there was no evidence that the defendant was prejudiced or injured by what was done. C. S. r. Pings, (1880) 4 Fed. Rep. 714. But see contra, Nicholls v. White, (1802) 1 Cranch (C. C.) 58. "There is nothing in this general phrase, 'according to common usage,' which imports that the federal courts in any of the states must adopt all subsequent new regulations that may be from time to time enacted by the state legislatures, or adopted by the state practice." U. S. r. Fifty Boxes, etc., Lace, (1899) 92 Fed. Rep. 601 [citing Turner v. Shackman, (1886) 27 Fed. Rep. 184; Ex p. Fisk, (1885) 113 U. S. 724]. The phrase "according to common usage in this section means according to the existing practice, whether at law or in equity, and the usage referred to is the common usage at the time of the revision in 1874; "and in districts where there is no established practice in the federal courts, it is no doubt competent and proper to refer to the usage in other districts, or to laws and usages of the state, as evidence of the common usage." U. S. v. Fifty Boxes, etc., Lace, (1899) 92 Fed. Rep. 601 [citing Bischoffsheim v. Baltzer, (1882) 20 Blatchf. (U. S.) 232; Buddicum . Kirk, (1806) 3 Cranch (U. S.) 293; Jones v. Oregon Cent. R. Co., (1875) 3 Sawy. (U. S.) 523]. "The words 'in any case' do not mean broadly any case where one of the parties to a controversy desires the evidence of a foreign witness, but any case of which the court granting the commission has jurisdiction. The cause must be one pending in the court, and not before some other tribunal or officer over whom the court has no power or control." The District Court, therefore, was held to be without authority to issue a commission under this section for the taking of testimony in an investigation under the Chinese Exclusion Acts, 22 Stat. L. 58, sec. 12, and 25 Stat. L. 476, sec. 13. U. S. v. Hom Hing, (1892) 48 Fed. Rep. 635. - A com Commissioners Agents of court. missioner, although nominated by a party, is an agent of the court. Gilpins . Consequa, (1813) 1 Pet. (C. C.) 85. Their authority to appear. - Inasmuch as commissioners act under a special authority which they are bound to pursue, this should be made to appear to the court by their own showing. Whatever facts in relation thereto are stated in their report, the court is bound prima facie to give credit to; but the court cannot presume that they have duly executed their authority when they are themselves silent upon that subject. It should particularly appear when and where the depositions were taken." Bondereau r. Montgomery, (1821) 4 Wash. (U. S.) 186. Com Authority to be strictly pursued. missioners not deriving their authority from the parties, but from the court, such authority being special, it must be strictly pursued; and therefore a commission issued to four commissioners jointly, having been executed and returned by three only, two of whom were of the defendants' nomination, the objection by the defendants to the regularity of the execution of the commission was sustired. Cupp r. Brown, (1805) 4 Dall. (Pa.) |