Page:United States Statutes at Large Volume 1.djvu/211

or before any chancellor, justice or judge of a supreme or superior court, mayor or chief magistrate of a city, or judge of a county court or court of common pleas of any of the United States, not being of counsel or attorney to either of the parties, or interested in the event of the cause, provided that a notification from the magistrate before whom the deposition is to be taken to the adverse party,Adverse party to be notified. to be present at the taking of the same, and to put interrogatories, if he think fit, be first made out and served on the adverse party or his attorney as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel.^[1]Notice in admiralty and maritime causes. And in causes of admiralty and maritime jurisdiction, or other cases of seizure when a libel shall be filed, in which an adverse party is not named, and depositions of persons circumstanced as aforesaid shall be taken before a claimAgent notified. be put in, the like notification as aforesaid shall be given to the person having the agency or possession of the property libelled at the time of the capture or seizure of the same, if known to the libellant. And every person deposing as aforesaid shall be carefully examined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the testimony by him or her given after the same shall be reduced to writing, which shall be done only by the magistrate taking the deposition, or by the deponent in his presence.Depositions retained. And the depositions so taken shall be retained by such magistrate until he deliver the same with his own hand into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid of their being taken, and of the notice if any given to the adverse party, be by him the said magistrate sealed up and directed to such court, and remain under his seal until opened in court. And any person may be compelled to appear and depose as aforesaid in the same manner as to appear and testify in court.^[2]Persons may be compelled to appear and testify. And in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from,Appeal allowed. if either party shall suggest to and satisfy the court that probably it will not be in his power to produce the witnesses there testifying before the circuit court should an appeal be had, and shall move that their testimony be taken down in writing, it shall be so done by the clerk of the court.^[3] And

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1. The following cases have been decided relating to depositions taken under the provisions of this act:

   That the deponent is a seaman on board a gun-boat in the harbour, and liable to be ordered to some other place, and not to be able to attend the court at the time of sitting, is not a sufficient reason for taking his deposition under the act of September 24, 1789, chap. 20.

   If it appear on the face of the deposition taken under the act of Congress, that the officer taking the memo, was authorized by the act, it is sufficient in the first instance, without any proof that he was such officer.  Ruggles v. Bucknor, 1 Paine’s C. C. R. 358.

   Objections to the competency of the witness whose deposition is taken under the act of 1789, should be made at the time of taking the deposition, if the party attend, and the objections are known to him, in order that they may be removed: otherwise he will be presumed to waive them.  United States v. Hairpencils, 1 Paine’s C. C. R. 400.

   A deposition taken under the 30th section of the act of 1789 cannot be made on evidence, unless the judge before whom it was taken, certify that it was reduced to writing by himself, or by the witness in his presence.  Pettibone v. Derringer, 4 Wash. C. C. R. 215.  See United States v. Smith, 4 Day, 121. North Carolina Cases, 81.

   The authority given by the act of 1789, to take depositions of witnesses in the absence of the opposite party, is in derogation of the rules of common law, and has always been construed strictly; and therefore it is necessary to establish that all the requisites have been complied with, before such testimony can be admitted.  Bell v. Morrison et al., 1 Peters, 351.  The Patapsco Ins. Comp. v. Southgate, 5 Peters, 604.  The United States v. Coolidge, 1 Gallis. C. C. R. 488.  Evans v. Hettick, 3 Wash. C. C. R. 408.  Thomas and Henry v. The United States, 1 Brockeb’s C. C. R. 367.

   The provisions of the 30th section of the act of 1789, as to taking depositions, de bene esse, does not apply to cases pending in the Supreme Court, but only to cases in the Circuit and District Courts.  The Argo, 2 Wheat. 287; 4 Cond. Rep. 119.

   Where there is an attorney on record, notice must in all cases be given to him. Ibid.

   The deposition of a person residing out of the State, and more than one hundred miles from the place of trial, cannot be read in evidence.  Blocker v. Bond, 3 Wash. C. C. R. 529.  See Buddicum v. Kirke, 3 Cranch, 293; 1 Cond. Rep. 535.

2. It is a fatal objection to a deposition taken under the 30th section of the act of 1789, that it was opened out of court.  Beale v. Thompson, 8 Cranch, 70; 3 Cond. Rep. 35.
3. Since the act of March 3, 1803, chap. 40, in admiralty as well as in equity cases carried up to the