show that the magistrate reduced the testimony to writing himself, or that it was done by the witness in his presence. It is the better practice for the magistrate to certify that he reduced the deposition to writing in the presence of the witness. No other person can reduce the deposition to writing except the magistrate or the deponent in his presence,10 except by consent." A certificate by the magistrate that the deposition was reduced to writing in his presence, without saying by whom, is bad.12 The objection that the magistrate does not certify that the deposition was signed by the witness in his presence, is not fatal.13 If the deponent reduces the deposition to writing, the magistrate must certify that it was reduced to writing by the deponent in his presence.14 A certificate by the magistrate that the deposition was reduced to writing by the witness and himself was held sufficient. 15 If the deposition bears the witness' signature and appears to have been reduced to writing by the magistrate, it is sufficient, although the certificate does not say that it was signed by the witness.16 In one case, a deposition was rejected because the magistrate certified that "the form," an evident slip of the pen for "the same," which were the words of the statute then in force, was reduced to writing." 17 The certificate should state whether the parties. were or were not present or represented.18 The certificate should contain the reasons for which the deposition was taken.19 It has been held that a certificate sufficiently shows the reason for making depositions, if the caption of the deposition states where the depositions were taken, without giving the distance from the 8 Cook v. Burnley, 11 Wall. 659; United States v. Smith, 4 Day (Conn.), 121; Bell v. Morrison, 1 Pet. 351, 355. But see Bussard v. Catalino, 2 Cranch C. C. 421. 9 Donahue v. Roberts, 19 Fed. R. 863. Contra, Vasse v. Smith, 2 Cranch C. C. 31; Van Ness v. Heineke, 2 Cranch C. C. 259; Centre v. Keen, 2 Cranch C. C. 198. 10 Marstin v. McRae, Hempst. 688; Rainer v. Haynes, Hempst. 689. 11 Stewart v. Townsend, 41 Fed. R. 121. 12 United States v. Smith, 4 Day (Conn.), 121. 13 Van Ness v. Heineke, 2 Cranch C. C. 259; Centre v. Keen, 2 Cranch C. C. 198. 228; Rainer v. Haynes, Hempst. 689; 16 Bussard v. Catalino, 2 Cranch C. C. 421. But see Cook v. Burnley, 11 Wall. 659; Donahue v. Roberts, 19 Fed. R. 863. 17 Voce v. Lawrence, 4 McLean, 203; Burton v. Simmons, 2 Cranch C. C. 195. 18 Curtis v. Railway Co., 6 McLean, 401. 19 Shutte v. Thompson, 15 Wall. 152; Sage v. Tauszky, 6 Cent. L. J. 7; Harris v. Wall, 7 How. 693; Woodward v. Hall, 2 Cranch C. C. 235; Wheaton v. Love, 1 Cranch C. C. 451; Jones v. Knowles, 1 14 Edmonson v. Barrel, 2 Cranch C. C. Cranch C. C. 523. See supra, § 236. place of taking to the place of trial; if the distance is in fact, and is well known by all parties to be, more than one hundred miles from the place of trial.20 The notice need not be attached to the deposition.21 If the deposition is sent by mail, the magistrate should certify that it was retained by him until sealed up and directed to the court. The deposition need not state that the deposition has been sealed, provided that it appears by the envelope that the deposition was sealed.23 If the deposition is sealed up with the seal of a corporation, across which are written the name or the names of the person or persons who took the deposition, it is sufficient.24 The accidental opening in the mail of an envelope containing a deposition taken by a commission under Rule 67 does not authorize the suppression of the deposition.25 If the magistrate have an official seal under which he usually certifies his acts, it seems that this certificate should be under that seal.26 It seems that it will be presumed that he occupies the official position which he assumes in his certificate; 27 certainly so if he be a notary public and certifies under his notarial seal; 28 and this may always be proved by oral testimony like any other material fact.29 The deposition may be directed to either the judge or the clerk of the court.80 It cannot be read in evidence if opened anywhere but in court,31 except by consent, which it will be well to have appear by writing duly signed and filed with or indorsed on the deposition.32 Where the certificate' fails to state certain material facts, by leave of the court the deposition may be withdrawn from the clerk's office, the certificate amended, and the deposition then refiled. If an attorney appear and crossexamine a witness without objection, he thereby waives any no 20 Egbert v. Citizens' Ins. Co. of Mo., 7 Huntt, 5 Cranch C. C. 120. But see Fed. R. 47. Tooker v. Thompson, 8 McLean, 92. 21 Stewart v. Townsend, 41 Fed. R. 121. 22 Shankwiker v. Reading, 4 McLean, 240; Jones v. Neale, 1 Hughes, 268. But see Stewart v. Townsend, 41 Fed. R. 121. 23 Egbert v. Citizens' Ins. Co. of Mo., 7 Fed. R. 47, 50. 24 Re Thomas, 35 Fed. R. 337. 25 Eiffert v. Craps, 44 Fed. R. 164. 26 Paul v. Lowry, 2 Cranch C. C. 628. But see Price v. Morris, 5 McLean, 4. 27 Ruggles v. Bucknor, 1 Paine, 358; Price v. Morris, 5 McLean, 4; Vasse v. Smith, 2 Cranch C. C. 31; Whitney v. 28 Dinsmore v. Maroney, 4 Blatchf. 416. 29 Paul v. Lowry, 2 Cranch C. C. 628; Dunlop v. Munroe, 1 Cranch C. C. 536. 30 Thorp v. Orr, 2 Cranch C. C. 335; Whitney v. Huntt, 5 Cranch C. C. 120. 81 Beale v. Thompson, 8 Cranch, 70; The Roscius, 1 Brown Adm. 442. In re Thomas, 35 Fed. R. 337. 82 The Roscius, 1 Brown Adm. 442. 83 Gartside Coal Co. v. Maxwell, 20 Fed. R. 187; Donahue v. Roberts, 19 Fed. R. 863; Leatherberry v. Radcliffe, 5 Cranch C. C. 550. tice or irregularity in the notice, or in the form and manner of the proceedings,35 or, it seems, an incompetency in the witness then known to him,36 or any other formal defect. His presence, however, if he declines to take any part in the proceedings, does not.37 It is the safer and the usual practice for the counsel present to note on the record all objections to the form of questions; and a failure to note such an objection might be held a waiver by a party who was present or represented at the examination. Irregularities are waived by consent to open depositions" without prejudice to any objections to the inclosed deposition other than relating to publication and opening, which is hereby waived." 38 An objection to the failure of a witness to produce a paper to which he referred, or which was called for, can only be made by a motion to suppress the deposition. In general, all defects in form can only be raised by a motion to suppress the deposition,40 and the court may, when such a motion is granted, usually allow an adjournment of the hearing in order that the testimony may again be taken.41 39 § 288. Commissions issued under a Dedimus Potestatem.-The Revised Statutes provide that "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 the provisions of Sections eight hundred and sixty-three, eight hundred and sixtyfour, and eight hundred and sixty-five shall not apply to any depositions to be taken under the authority of this section." This statute applies in criminal prosecutions,2 actions at law, and cases in equity. The words "common usage" when applied to a suit in equity, signify the ordinary practice of courts of equity.5 In 34 Dinsmore v. Maroney, 4 Blatchf. 416. 35 Shutte v. Thompson, 15 Wall. 152; In re Thomas, 35 Fed. R. 822. 36 United States v. One Case, 1 Paine, 400. 37 Harris v. Wall, 7 How. 693. McLean, 432; Uhle v. Burnham, 44 Fed. 41 Luther v. The Merritt Hunt, 1 Newb. 4; Doe d. Moore v. Nelson, 3 McLean, 383. 288. U. S. R. S. § 866; Jones v. 38 Stewart v. Townsend, 41 Fed. R. Oregon Central R. R. Co., 3 Sawyer, 523. 121. 39 Blackburn v. Crawford, 3 Wall 175; Winans v. New York & E. R. R. Co., 21 How. 88. 40 Claxton v. Adams, 1 MacArthur (D. C.), 496; Bank of Danville v. Travers, 4 Biss. 507; Brooks v. Jenkins, 8 2 United States v. Cameron, 15 Fed. R. 794; United States v. Wilder, 14 Fed. R. 393. 447. 8 Peters v. Prevost, 1 Paine, 64. 4 Bischoffheim v. Baltzer, 10 Fed. R. 1. 5 United States v. Parrott, 1 McAll. 8 a case of doubtful authority, the condition that a safe conduct be furnished to the plaintiff was inserted in an order for a commission to examine witnesses on the part of the defendant in a foreign country, but a commission to prove documents was allowed without such a condition.7 Depositions may be taken under this section of the Revised Statutes, even though the witness live within one hundred miles of the court where the cause is pending; or in a country with which the United States are at war. Such a commission is not granted as of course, but only upon good cause shown.10 The application must be made. in open court, and not to a judge at chambers; 11 and must be accompanied by an affidavit showing that the testimony which the party desires to take is material.12 It seems that the commistion need not specify the exact place where the depositions are to be taken; but if it do, the commissioners should conform to it in that respect.13 Whether a party will or will not be required before the commission is issued to name the witnesses to be examined under it, depends upon the discretion of the court, to be exercised under the circumstances of each case.14 Before the issue of the commission, the proposed interrogatories should be filed 15 and served upon the opposite party or his attorney; 16 and the latter given a reasonable time, usually fixed by the court, within which to object to them and to file cross-interrogatories.17 If he omit to do so, the commission may be issued without further notice.18 The interrogatories are drawn up substantially as those for the examination of witnesses within the jurisdiction of the court.19 Objections to interrogatories or cross-interrogatories should be in the form of exceptions to them, and must be filed before the commission issues; or otherwise will be held waived.20 If the parties • Hollander v. Baiz, 40 Fed. R. 659. 7 Hollander v. Baiz, 43 Fed. R. 35. 8 Wellford v. Miller, 1 Cranch C. C. 485; Russell v. M'Lellan, 3 W. & M. 157. Peters v. Prevost, 1 Paine, 64. 10 United States v. Parrott, 1 McAll. 447. 11 Peters v. Prevost, 1 Paine, 64. 18 Rhoades v. Selin, 4 Wash. 715. 16 Rhoades v. Selin, 4 Wash. 715; Merrill v. Dawson, Hempst. 563; s. c. sub nom. Fowler v. Merrill, 11 How. 375. 17 Frevall v. Bache, 5 Cranch C. C. 463; The Norway, 1 Ben. 493. Leave to cross-examine orally will rarely be given. Coates v. Merrick Thread Co., 41 Fed. R. 73. 18 Cocker v. F. H. & B. Co., 1 Story, 169. 19 Rhoades v. Selin, 4 Wash. 715. 20 Cocker v. Franklin H. & B. Co., 1. Story, 169. cannot agree as to their form or substance, a reference may be ordered to a master, whose report will be reviewed by the court.21 If there be any doubt as to the relevancy or propriety of an interrogatory, the ultimate decision thereon will be reserved until the hearing, and it will be allowed to stand and be answered. If there be no doubt as to its irrelevancy or impropriety, it will be stricken out before the commission issues.22 A commission must always name or designate the commissioner or commissioners.23 A woman may be a commissioner, even though she be the wife of the witness to be examined.24 The court may grant an order that exhibits annexed to a deposition already taken may be removed from the file and attached to a commission, provided that copies of them are left in their place.25 3 If the ap § 289. Proceedings under a Dedimus Potestatem. plication does not state when and where the commission is to be executed, the party at whose instance, or the commissioner to whom it is issued, should notify the adverse party or his solicitor before the depositions are taken. The notice should name the year as well as the day.2 When, however, a party, after notice of an opportunity to do so, has neglected to file cross-interrogatories, no further notice to him is necessary. The notice should be served personally, or else left at the house of the person upon whom it is made with a member of his family of sufficient intelligence. The person upon whom it is left, however, need not be informed of its purport.5 Service by mail, unless actually received in time, is insufficient. An hour's notice of the time of taking a deposition in the place where the attorney to whom it is given dwells, has been held sufficient." The regulation of the proceedings under a commission is a matter in the discretion of the court issuing it.8 A commissioner is appointed by and repre 21 Cocker v. F. H. & B. Co., 1 Story, 169; Boudereau v. Montgomery, 4 Wash. 186. 22 Cocker v. F. H. & B. Co., 1 Story, 169. 23 Vanstophorst v. Maryland, 2 Dall. 401. 24 The Norway, 2 Ben. 121. 25 Daly v. Maguire, 6 Blatchf. 137. § 289. Rhoades v. Selin, 4 Wash. 715; Knode v. Williamson, 17 Wall. 586; Merrill v. Dawson, Hempst. 563; s. C. sub nom. Fowler v. Merrill, 11 How 375; Dunlop v. Munroe, 1 Cranch C. C. 536. |