tificate will be good evidence of all the facts therein stated, so as to entitle the deposition to be read, if the necessary facts are therein sufficiently disclosed.1 In cases where, under the authority of an act of Congress, the deposition of a witness is taken de bene esse, the party producing the deposition must show affirmatively that his inability to procure the personal attendance of the witness still continues; or, in other words, that the cause of taking the deposition remains in force. But this rule is not applied to cases where the witness resides more than a hundred miles from the place of trial, he being beyond the reach of compulsory process. If he resided beyond that distance when the deposition was taken, it is presumed that he continues so to do, until the party opposing its admission shows that he has removed within the reach of a subpoena.2

ing it, his certificate of the cause of taking is prima facie proof of the fact, and renders the deposition admissible, unless it is controlled by other evidence. West Boylston v. Sterling, 17 Pick. 126; Littlehale v. Dix, 11 Id. 365. Nor is it necessary that it should appear by the deposition or the certificate in what manner, or by what evidence, the magistrate was satisfied of the existence of the cause of the taking. It is enough, if he certifies to the fact upon his official responsibility. Thus, where the magistrate duly certified that the deponent lived more than thirty miles from the place of trial, no evidence being offered to control the certificate, and the court not being bound to take judicial notice of the distance of one place from another, it was held that the deposition was rightly admitted. Littlehale v. Dix, ub. supra. Where the magistrate certifies that the "cause assigned by the plaintiff," who was the party taking the deposition, for taking the same, was the deponent's being about to leave the Commonwealth, and not to return in time for the trial, it is proper that such party should show that the cause existed at the time of the trial. Kinney v. Berran, 6 Cush. 394].

1 Bell v. Morrison, 1 Peters, 356. 2 The Patapsco Ins. Co. v. Southgate, 5 Peters, 604, 616-618; Pettibone v. Derringer, 4 Wash. 215; 1 Stark. Evid. 277. [Where a deposition is taken under the act of Congress, without notice, the adverse party, if dissatisfied, should have it taken again. Goodhue v. Bartlett, 5 McLean, 186. Where the Federal Circuit Court adopts the law and practice of the State in taking depositions, it will be presumed to have adopted a modification

thereof, which has been followed for a long time. But whatever be the State law, the act of Congress is to prevail, which requires that the deponent should live one hundred miles from the court. Curtis v. Central Railroad, 6 McLean, 401.

A few cases are added, illustrating the rules of law and the practice of the courts in regard to admitting or rejecting depositions. Depositions of several witnesses, taken under one commission on one set of interrogatories, a part of which only are to be propounded to each witness, can be used in evidence. Fowler v. Merrill, 11 How. (U. S.) 375. If the words "before me," preceding the name of the magistrate before whom the deposition was taken and sworn, be omitted in the caption, the deposition is not admissible. Powers v. Shepard, 1 Foster (N. H.), 60. Where one party takes a deposition on interrogatories, or portions of a deposition, for the purpose of meeting the testimony of a witness who has deposed, or testimony which he may expect the other party will produce, but does not intend to use the answers thereto, unless the other testimony is introduced, he must accompany the interrogatories with a distinct notice in writing that his purpose is merely to meet the testimony of his adversary's witness or witnesses; and if this is not done, the answers must be read to the jury if required by the other party. This is the most eligible rule in such cases, and will save to each party all his just rights, and prevent all unfairness and surprise. By Metcalf, J., in Linfield v. Old Colony R. R. Corp., 10 Cush. 570. See McKelvy v. De Wolfe, 20 Penn. St. 374. A deposition taken under a commission duly issued on "interroga

§ 324. Depositions in perpetuam. By the act of Congress already cited,1 the power of the courts of the United States, as courts of common law, to grant a dedimus potestatem to take depositions, whenever it may be necessary, in order to prevent a failure or delay of justice, is expressly recognized; and the circuit courts, when sitting as courts of equity, are empowered to direct depositions to be taken in perpetuam rei memoriam, according to the usages in chancery, where the matters to which they relate are cognizable in those courts. A later statute has facilitated the taking of depositions in the former of these cases, by providing that when a commission shall be issued by a court of the United States for taking the testimony of a witness, at any place within the United States, or the territories thereof, the clerk of any court of the United States, for the district or territory where the place may be, may issue a subpoena for the attendance of the witness before the commissioner, provided the place be in the county where the witness resides, and not more than forty miles from his dwelling. And if the witness, being duly summoned, shall neglect or refuse to appear, or shall refuse to testify, any judge of the same court, upon

tories to be put to M. H. B., of Janesville, Wisconsin, laborer," but which purports by its caption to be the deposition of M. H. B., of Sandusky, Ohio, and in which the deponent states his occupation to be that of peddler, is admissible in evidence, notwithstanding the variance, if it appears that the deponent is the same person to whom the interrogatories are addressed. Smith v. Castles, 1 Gray, 108. The questions appended to a commission sent to Bremen were in English; the commissioners returned the answers in German, annexed to a German translation of the questions; the commission was objected to on the ground that the return should have been in English, or accompanied by an English translation; but the objection was overruled; and a sworn interpreter was permitted to translate the answers viva voce to the jury. Kuhtman v. Brown, 4 Rich. 479. Where a deposition is taken by a magistrate in another State, under a written agreement that it may be so taken upon the interrogatories and cross-interrogatories annexed to the agreement, such agreement operates only as a substitute for a commission to the magistrate named therein, and a waiver of objections to the interrogatories in point of form, and does not deprive either party of the right to

proof of such contempt, may

object, at the trial, to the interrogatories and answers, as proving facts by incompetent evidence. Atlantic Mutual Ins. Co. v. Fitzpatrick, 2 Gray, 279; Lord v. Moore, 37 Maine, 208. And to exclude the deposition on the ground of the interest of the deponent, it is not necessary that the objection should be taken before the magistrate. Whitney v. Heywood, 6 Cush. 82; infra, § 421, n. Where the witness was interested at the time his deposition was taken, and a release to him was afterwards executed, the deposition was not admitted. Reed v. Rice, 25 Vt. 171; Ellis v. Smith, 10 Geo. 253. If the deponent is disqualified by reason of interest at the time of giving his deposition, and at the time of the trial the disqualification has been removed by statute, the deposition can be used in evidence. Haynes v. Rowe, 40 Maine, 181. Where, after the deposition is taken, he becomes interested in the event of the suit, by no act of his own, or of the party who offers his testimony, the deposition is admissible. Sabine v. Strong, 6 Met. 670.]

1 Stat. 1789, c. 20, § 30. 2 Stat. 1827, c. 4. See the practice and course of proceeding in these cases, in 2 Paine & Duer's Pr. pp. 102–110; 2 Tidd's Pr. 810-812.

enforce obedience, or punish the disobedience, in the same manner as the courts of the United States may do, in case of disobedience to their own process of subpoena ad testificandum. Some of the States have made provision by law for the taking of depositions, to be used in suits pending in other States, by bringing the deponent within the operation of their own statutes against perjury; and national comity plainly requires the enactment of similar provisions in all civilized countries. But as yet they are far from being universal; and whether, in the absence of such provision, false swearing in such case is punishable as perjury, has been gravely doubted.1 Where the production of papers is required, in the case of examinations under commissions issued from courts of the United States, any judge of a court of the United States may, by the same statute, order the clerk to issue a subpoena duces tecum requiring the witness to produce such papers to the commissioner, upon the affidavit of the applicant to his belief that the witness possesses the papers, and that they are material to his case; and may enforce the obedience and punish the disobedience of the witness, in the manner above stated.

§ 325. Same subject. But independently of statutory provisions, chancery has power to sustain bills, filed for the purpose of preserving the evidence of witnesses in perpetuam rei memoriam, touching any matter which cannot be immediately investigated in a court of law, or where the evidence of a material witness is likely to be lost, by his death, or departure from the jurisdiction, or by any other cause, before the facts can be judicially investigated. The defendant, in such cases, is compelled to appear and answer, and the cause is brought to issue, and a commission for the examination of the witnesses is made out, executed, and returned in the same manner as in other cases; but no relief being prayed, the suit is never brought to a hearing; nor will the court ordinarily permit the publication of the depositions, except in support of a suit or action; nor then, unless the witnesses are dead, or otherwise incapable of attending to be examined.2

1 Cailland v. Vaughan, 1 B. & B. 210. 2 Smith's Chancery Prac. 284-286.

CHAPTER II.

OF THE COMPETENCY OF WITNESSES.

§ 326. Competency of evidence. Although, in the ordinary affairs of life, temptations to practise deceit and falsehood may be comparatively few, and therefore men may ordinarily be disposed to believe the statements of each other; yet, in judicial investigations, the motives to pervert the truth and to perpetrate falsehood and fraud are so greatly multiplied, that if statements were received with the same undiscriminating freedom as in private life, the ends of justice could with far less certainty be attained. In private life, too, men can inquire and determine for themselves whom they will deal with, and in whom they will confide; but the situation of judges and jurors renders it difficult, if not impossible, in the narrow compass of a trial, to investigate the character of witnesses; and from the very nature of judicial proceedings, and the necessity of preventing the multiplication of issues to be tried, it often may happen that the testimony of a witness, unworthy of credit, may receive as much consideration as that of one worthy of the fullest confidence. If no means were employed totally to exclude any contaminating influences from the fountains of justice, this evil would constantly occur. But the danger has always been felt, and always guarded against, in all civilized countries. And while all evidence is open to the objection of the adverse party, before it is admitted, it has been found necessary to the ends of justice, that certain kinds of evidence should be uniformly excluded.1

§ 327. Same subject. In determining what evidence shall be admitted and weighed by the jury, and what shall not be received at all, or, in other words, in distinguishing between competent and incompetent witnesses, a principle seems to have been applied similar to that which distinguishes between conclusive and disputable presumptions of law; 2 namely, the experienced connection. between the situation of the witness, and the truth or falsity of 2 Supra, §§ 14, 15.

1 4 Inst. 279.

his testimony. Thus, the law excludes as incompetent, those persons whose evidence, in general, is found more likely than otherwise to mislead juries; receiving and weighing the testimony of others, and giving to it that degree of credit which it is found on examination to deserve. It is obviously impossible that any test of credibility can be infallible. All that can be done is to approximate to such a degree of certainty as will ordinarily meet the justice of the case. The question is not, whether any rule of exclusion may not sometimes shut out credible testimony; but whether it is expedient that there should be any rule of exclusion at all. If the purposes of justice require that the decision of causes should not be embarrassed by statements generally found to be deceptive, or totally false, there must be some rule designating the class of evidence to be excluded; and in this case, as in determining the ages of discretion, and of majority, and in deciding as to the liability of the wife, for crimes committed in company with the husband, and in numerous other instances, the common law has merely followed the common experience of mankind. It rejects the testimony (1) of parties; (2) of persons deficient in understanding; (3) of persons insensible to the obligations of an oath; and (4) of persons whose pecuniary interest is directly involved in the matter in issue; not because they may not sometimes state the truth, but because it would ordinarily be unsafe to rely on their testimony.1 Other causes concur, in some of these cases, to render the persons incompetent, which will be mentioned in their proper places. We shall now proceed to consider, in their order, each of these classes of persons, held incompetent to testify; adding some observations

1 "If it be objected, that interest in the matter in dispute might, from the bias it creates, be an exception to the credit, but that it ought not to be absolutely so to the competency, any more than the friendship or enmity of a party, whose evidence is offered, towards either of the parties in the cause, or many other considerations hereafter to be intimated; the general answer may be this, that in point of authority no distinction is more absolutely settled; and in point of theory, the existence of a direct interest is capable of being precisely proved; but its influence on the mind is of a nature not to discover itself to the jury; whence it hath been held expedient to adopt a general exception, by which

witnesses so circumstanced are free from temptation, and the cause not exposed to the hazard of the very doubtful estimate, what quantity of interest in the question, in proportion to the character of the witness, in any instance, leaves his testimony entitled to belief. Some, indeed, are incapable of being biassed even latently by the greatest interest; many would betray the most solemn obligation and public confidence for an interest very inconsiderable. An universal exclusion, where no line short of this could have been drawn, preserves infirmity from a snare, and integrity from suspicion; and keeps the current of evidence, thus far at least, clear and uninfected." 1 Gilb. Evid. by Lofft, pp. 223, 224.