SEC. 860. Pleadings, disclosures, etc., not to be used in criminal proceedings.-No pleading of a party, nor any discovery or evidence obtained from a party or witness by means of a judicial proceeding in this or any foreign country, shall be given in evidence, or in any manner used against him or his property or estate, in any court of the United States, in any criminal proceeding, or for the enforcement of any penalty or forfeiture: Provided, That this section shall not exempt any party or witness from prosecution and punishment for perjury committed in discovering or testifying as aforesaid. 25 Feb., 1868, c. 13, s. 1, v. 15, p. 37.

When a bill is brought for a discovery and for other equitable relief within the appropriate jurisdiction of a court of equity, and the ultimate object of ́. the plaintiff is to obtain damages, the court having granted a discovery will proceed and give the proper relief in damages, and not compel the plaintiff to undergo the delays and expenses of a suit at law. Magic Ruffle Co. v. Elm City Co., 14 Blatchf., 109.

Does not apply to books and papers.-Where the books of a firm had been seized by virtue of a warrant, issued to the collector of a port, directing him to seize books, papers, etc., of a party charged with a fraud upon the revenue, and, on the trial of the party charged, were offered in evidence on the part of the United States, but were excluded by the court on the ground of the provisions of this section (860), it was held that the books and papers were improperly excluded, as the discovery or evidence contemplated by the statute is of a personal nature, and not such as may be derived from an examination of books and papers. United States v. Hughes, 12 Blatch., 553.

What is not a criminal proceeding.-A proceeding against a distillery for forfeiture under the revenue laws, is not a criminal proceeding within the meaning of the Constitution, and it is no infringement of personal or constitutional rights, for the government of the United States to seize all the books and papers kept by a distiller, in his business; nor are they protected by the rules against obtaining from a party evidence to be used against himself. United States v. Three Tons of Coal, 6 Bliss., 379. See, also, United States v. Distillery, 6 Id., 483.

SEC. 861. Mode of proof in common law actions.-The mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided.

24 Sept., 1789, c. 20, s. 30, v. 1, p. 88; 20 Feb., 1812, c. 25, s. 3, v. 2, p. 682; 24 Jan., 1827, c. 4, ss. 1, 2, v. 4, pp. 197, 199.

SEC. 862. Mode of proof in equity and admiralty causes. The mode of proof in causes of equity and of admiralty and maritime jurisdiction shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein specially provided.

23 Aug., 1842, c. 188, s. 6, v. 5, p. 518.

Oral testimony in equity.-Circuit courts are not now required (under § 826 of the Rev. Stat.), to permit the examination of witnesses orally in open court upon the hearing of a case in equity; but if in their discretion they may do so, the testimony presented in that form must be taken down, or its substance stated in writing and made part of the record, or it will be entirely disregarded in the Supreme Court, on appeal. And if testimony is objected to and ruled out, it must still be sent up with the record, subject to objection, or the ruling will not be considered, and it will not be sent back to have the rejected testimony taken. Blease v. Garlington, 92 U. S., 1.

SEC. 863. Depositions de bene esse.-The testimony of any witness may be taken in any civil cause depending in a district or circuit court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. The deposition may be taken before any judge of any court of the United States, or any commissioner of a circuit court, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas, of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition; and in all cases in rem, the person having the agency or possession

of the property at the time of seizure shall be deemed the adverso party, until a claim shall have been put in; and whenever, by reason of the absence from the district and want of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and direct. Any person may be compelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court.

24 Sept., 1789, c. 20, s. 30, v. 1, p. 88; 1 Mar., 1817, c. 30, v. 3, p. 350; 26 Feb., 1853, c. 80, s. 1, v. 10, p. 163; 29 July, 1854, c. 159, s. 2, v. 10, p. 315; 9 May, 1872, c. 146, v. 17, p. 89.

When allowable-distance.-The provision allowing depositions to be taken if the witness lives more than one hundred miles from the place of trial, does not limit the place to the district where the court is held. Patapsco Ins. Co. v. Southgate, 5 Pet., 604. But if after the taking of the deposition he removes within reach of a subpœna, his personal attendance would have to be procured. Id.; Russel v. Ashley, Hemp., 546; Pettibone v. Derringer, 4 Wash., C. C., 219. But he must reside more than one hundred miles from the place of holding court at the time the deposition is taken. Curtis v. Central Railway, 6 McLean, 401; Dreskill v. Parish, 5 Id., 241.

When not allowable.-And a witness cannot be compelled to attend for examination de bene esse, although he is found at a place more than one hundred miles from the place of trial, if he ordinarily resides within that distance and is only casually absent from home, unless he is going to sea, or is aged, or infirm, etc. Ex parte Humphrey, 2 Blatch., 228.

Rules prescribe the practice.-The rules prescribe in detail for the issuing and execution of commissions to take testimony. See, post, Rule 49, in Admiralty; rule 67, in Equity; and rule 12, of the general rules of the Supreme Court.

Depositions in term time.-Depositions taken during term time, without notice, if admissible at all under acts of congress, are very dangerous in their ex parte character, for the fair trial of the merits of a cause, and should be very closely scrutinized. Allen v. Blunt, 2 Wood. and M., 135; Bell v. Morrison, 1 Pet., 356; Walsh v. Rogers, 13 How., 283.

Cannot be used in another suit.-Depositions incorporated into the record in one suit are not admissible in another suit, where the witnesses are competent, and can be procured. Tappan v. Beardsley, 10 Wall., 427; Rutherford v. Geddes, 4 Id., 220.

The statute must be strictly pursued.-Being in derrogation of the rules of common law the statute has always been strictly construed; and it is necessary to establish that all the requisites of the law have been complied with before the testimony is admissible. Armstrong v. Brown, 1 Wash., C. C., 43; Thorpe v. Simons, 2 Cr., C. C., 195. If the commission issues to five commissioners, it is not sufficient that three of them execute and return it. Id.; Guffy v. Brown, 4 Dall., 410; Munns v. Dupont, 3 Wash., C. C., 31. Nor can it be read if taken before other persons than those mentioned in the commission. Banert v. Day, 3 Id., 243.

But a commission to A. and B., or to either of them, is good, if taken before B. Lonsdale v. Brown, Id., 404.

A party may waive his rights.-And although the statute must be strictly observed, yet a party may waive any provision intended for his benefit; and he will be presumed to have waived them, if he refrained at a time when they might have been removed and until the possibility of removal had ceased from making objection, that provisions intended for his benefit were not complied with, or consents that the deposition be taken and returned to court as it was. Shute v. Thompson, 15 Wall., 151; Buddicum v. Kirk, 3 Cr., 293; York Company v. Central Railroad Co., 3 Wall., 113; United States v. One Case of Hair Pencils, 1 Paine, 400.

Notice, to whom given.-The court will require notice to be given in all cases where there is an attorney of record. Buddicum v. Kirk, supra. Notice directed to a party may be served on an attorney at law. Barrel v. Simington, 4 Cr., C. C., 70. And notice of a motion for a dedimus may be given to the attorney. Potts v. Skinner, 1 Id., 57. But personal service is necessary. Carrington v. Stimson, 1 Curt., 437. Notice to an attorney would not be good, if he could not be present at the taking without being absent at the commencement of the court. Bell v. Nimmon, 4 McLean, 539.

Certificate. The certificate of the magistrate is sufficient evidence of the facts stated therein to entitle the deposition to be read to the jury, if all the necessary facts are therein disclosed. Bell v. Morrison, 1 Pet., 351; Boudereau v. Montgomery, 4 Wash., C. C., 186; Harris v. Wall, 7 How., 693. A certificate of the person before whom the deposition was taken, that neither the adverse party nor his attorney lived within one hundred miles of the place where the deposition was taken, and that therefore no notice was (under the act of 1789), made out, is sufficient. Dick v. Runnels, 5 How., 7.

Conditions for taking and reading.—The conditions under which a party is permitted and a magistrate authorized to take a deposition de bene esse, are:

1. When the witness lives more than one hundred miles from the place of trial;

2. Or is bound on a voyage to sea;

3. Or is about to go out of the United States;

4. Or out of such district to a greater distance from the place of trial than one hundred miles, before the time of trial;

5. Or is ancient or infirm.

To entitle the deposition to be read upon the trial, it must be shown: 1. That the witness is dead;

2. Or gone out of the United States;

3. Or to a greater distance than one hundred miles from the place where the court is sitting;

4. Or that, by reason of age, sickness, or bodily infirmity, he is unable to travel and appear at court. Harris v. Wall, 7 How., 693; The Patapsco Ins. Co. v. Southgate, 5 Pet., 604; The Samuel, 1 Wh., 9; Weed v. Kellogg, 6 McLean, 44; Bowie v. Talbot, 1 Cr., C. C., 247. The mere fact that a witness is sixty-five years old is not of itself sufficient cause that he cannot attend. Barnett v. Day, 3 Wash., C. C., 243. As to diligence to produce, see, Stein v. Bowman, 13 Pet., 209. For authorities under this section, see, ante, §§ 863 and 864, and notes.

SEC. 864. Mode of taking depositions de bene esse.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.

24 Sept., 1789, c. 20, s. 30, v. 1, p. 88; 9 May, 1872, c. 146, v. 17, p. 89.

What the magistrate should certify, presumptions.-The certificate of the magistrate will be prima facie evidence of his official character, if accompanied with the usual authentication of such papers before him; and the facts calling for the exercise of the authority should appear upon the face of the instrument and not be left to parol proof, although it has been held that it was not necessary for the magistrate to certify that he was not of counsel for the parties or interested in the event of the suit. Miller v. Young, 2 Cr., C. C., 53; Peyton v. Veitch, Id., 123; Paul v. Lowry, Id., 628; Jasper v. Porter, 2 McLean, 579; Price v. Morris, 5 Id., 4; Whitney v. Hunt, 5 Cr., 120; Harris v. Wall, 5 How., 693; Bell v. Morrison, 1 Pet., 355; Pettibone v. Derringer, 4 Wash., C. C., 219. If the magistrate does not certify any cause for taking, but merely appends the notice to the opposite party which states that the opposite party is "about to depart the State," this is not sufficient, and the deposition cannot be read. And it must appear that the magistrate or commissioner took the oath annexed to the commission. Harris v. Wall, supra; Freeval v. Bache, 5 Cr., C. C., 463. The return should also show where the deposition was taken that it may appear that the direction of the commission was complied with, Rhoades v. Selin, 4 Wash., C. C., 715; and it is competent to show the residence of the witness, Merill v. Dawson, Hemp., 563; that the witness lived more than one hundred miles from the place of trial, Patapsco Ins. Co. v. Southgate, 5 Pet., 604; that neither the adverse party nor his attorney lived within one