Page:United States Statutes at Large Volume 4.djvu/243

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of the

UNITED STATES,

Passed at the first session, which was begun and held at the City of Washington, in the District of Columbia, on Monday the fourth day of December, 1826, and ended on the third day of March, 1827.

John Quincy Adams, President; J. C. Calhoun, Vice President of the United States, and President of the Senate; Nathaniel Macon, President of the Senate, pro tempore; J. W. Taylor, Speaker of the House of Representatives.

STATUTE ⅠⅠ.

Jan. 24, 1827.

Chap. IV.—An Act to provide for taking evidence in the courts of the United States in certain cases.^[1]

Whenever a commission shall be issued, by any court of the United States, for taking the testimony of a witness or witnesses, at any place within the United States, or the territories thereof, it shall be lawful for the clerk of any court of the United States, for the district or territory within which such place may be, to issue a subpœna, or subpœnas, for such witness or witnesses named named in said commission.Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That, whenever a commission shall be issued, by any court of the United States, for taking the

↑ The decisions of the courts of the United States upon the laws relating to commissioners to take testimony have been:
Depositions taken under a commission issued at the instance of the defendant, may be read in evidence by the plaintiff, although the plaintiff had no notice of the time and place of taking them. Yeaton v. Fry, 5 Cranch, 335; 2 Cond. Rep. 273.
The court will not award a commission to take the testimony of absent witnesses until the commissioners are named. Van Stephorst v. The state of Maryland, 2 Dall. 401; 1 Cond. Rep. 2.
Under particular circumstances the court allowed a special commission, to take the depositions of witnesses, with instructions: 1. That the interrogatories should be filed in the court here by both parties previous to the issuing of the commission. 2. That the commissioners should be directed not to admit any additional interrogatories. 3. That neither parties nor counsel should be allowed to appear before the commissioners. Cunningham v. Otis, 1 Gallis. C. C. R. 166.
Commissioners to take depositions of witnesses, act under a special authority derived from the court, which must be strictly pursued; and, therefore, where a commission had issued to four commissioners jointly to take depositions, and it was executed and returned by three only, although both of the commissioners nominated by the defendant, had acted; yet he may object to the reading of the depositions, and the objections will be sustained. Armstrong v. Brown, 1 Wash. C. C. R. 34.
A commission to take testimony, which had issued in a case in which the United States was a party, was set aside, because it had been opened by an officer of the government before it came into the hands of the clerk, and a new commission was ordered, to which the original papers, which had been annexed to the first commission, were attached. The United States v. Price’s Adm’rs, 2 Wash. C. C. R. 356.
A commission to take evidence in an enemy’s country, in a prize cause, is contrary to the established practice in a prize court. The Diana, 2 Gallis. C. C. R. 93.
Each interrogatory, annexed to the commission, should be substantially answered, at least; and the omission, so to answer, is fatal to the whole testimony of the witness: although, in his answer to the general interrogatory, the witness has said he knows nothing material to either party. Ketland v. Bissett, 1 Wash. C. C. R. 144.
Where a commission to take evidence was executed in a foreign country, the government of which refused to let the commissioners act, considering it an assumption of the sovereign power, but the commission was executed by a judge of the court in the presence of the commissioners; the depositions were permitted to be read, as otherwise the course of justice might be impeded. In such a case the evidence must be fairly taken; all the evidence on each side must be put and answered. If, however, the interrogatories have been substantially put and answered, it is sufficient. Winthrop v. The Union Ins. Co., 2 Wash. C. C. R. 7.
It is no objection to the reading of a deposition, taken under a commission to to a foreign country, that the same witness had been previously examined and cross-examined in the United States. Ibid.
A joint commission to take the deposition of witnesses, must be executed by all the commissioners,

[p243-1] The decisions of the courts of the United States upon the laws relating to commissioners to take testimony have been:
Depositions taken under a commission issued at the instance of the defendant, may be read in evidence by the plaintiff, although the plaintiff had no notice of the time and place of taking them. Yeaton v. Fry, 5 Cranch, 335; 2 Cond. Rep. 273.
The court will not award a commission to take the testimony of absent witnesses until the commissioners are named. Van Stephorst v. The state of Maryland, 2 Dall. 401; 1 Cond. Rep. 2.
Under particular circumstances the court allowed a special commission, to take the depositions of witnesses, with instructions: 1. That the interrogatories should be filed in the court here by both parties previous to the issuing of the commission. 2. That the commissioners should be directed not to admit any additional interrogatories. 3. That neither parties nor counsel should be allowed to appear before the commissioners. Cunningham v. Otis, 1 Gallis. C. C. R. 166.
Commissioners to take depositions of witnesses, act under a special authority derived from the court, which must be strictly pursued; and, therefore, where a commission had issued to four commissioners jointly to take depositions, and it was executed and returned by three only, although both of the commissioners nominated by the defendant, had acted; yet he may object to the reading of the depositions, and the objections will be sustained. Armstrong v. Brown, 1 Wash. C. C. R. 34.
A commission to take testimony, which had issued in a case in which the United States was a party, was set aside, because it had been opened by an officer of the government before it came into the hands of the clerk, and a new commission was ordered, to which the original papers, which had been annexed to the first commission, were attached. The United States v. Price’s Adm’rs, 2 Wash. C. C. R. 356.
A commission to take evidence in an enemy’s country, in a prize cause, is contrary to the established practice in a prize court. The Diana, 2 Gallis. C. C. R. 93.
Each interrogatory, annexed to the commission, should be substantially answered, at least; and the omission, so to answer, is fatal to the whole testimony of the witness: although, in his answer to the general interrogatory, the witness has said he knows nothing material to either party. Ketland v. Bissett, 1 Wash. C. C. R. 144.
Where a commission to take evidence was executed in a foreign country, the government of which refused to let the commissioners act, considering it an assumption of the sovereign power, but the commission was executed by a judge of the court in the presence of the commissioners; the depositions were permitted to be read, as otherwise the course of justice might be impeded. In such a case the evidence must be fairly taken; all the evidence on each side must be put and answered. If, however, the interrogatories have been substantially put and answered, it is sufficient. Winthrop v. The Union Ins. Co., 2 Wash. C. C. R. 7.
It is no objection to the reading of a deposition, taken under a commission to to a foreign country, that the same witness had been previously examined and cross-examined in the United States. Ibid.
A joint commission to take the deposition of witnesses, must be executed by all the commissioners,

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Page:United States Statutes at Large Volume 4.djvu/243

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