and that any party in interest may compel such witness to appear and submit to cross-examination.43 Either party may

obtain an order compelling the return of a deposition thus taken." After the deposition is complete, the court may allow a further cross-examination on newly-discovered facts.45 The court has the power to compel the opening of such a deposition before the trial upon the motion of either party against the objection of the other. It is the safer practice to have the witness sign his deposition." No notice of filing a deposition need be given to a party who knows it has been taken.48 A State statute requiring depositions to be filed a certain number of days before trial was not followed by the Federal court."

46

49

§ 287. Form of deposition under acts of Congress. The deposition should state, either in its body or in its caption, the name of the court where the cause is pending,' the title of the cause, and the place where the deposition is taken." If the deponent reduces the deposition to writing, the magistrate must certify that it was reduced to writing by the deponent in his

43 Ex parte Barnes, 1 Sprague, 133; Re Rindskopf, 24 Fed. R. 542.

3 Pendleton v. Forbes, 1 Cranch, C. C. 507; Tooker v. Thompson, 3 Mc

44 First Nat. Bank v. Forest, 44 Fed. Lean, 92. A slight error in the capR. 246.

45 The Normandie, 40 Fed. R. 590. 46 U. S. v. Tilden, 10 Ben. 170.

tion, such as a mistake in spelling the name of a party, Van Ness v. Heineke, 2 Cranch, C. C. 259; or the

47 Thorpe v. Simmons, 2 Cranch, C. omission from the title of the cause C. 195.

48 Nelson v. Woodruff, 1 Black, 156; Leatherberry v. Radcliffe, 5 Cranch, C. C. 550. For practice when a deposition is destroyed, see Stebbins v. Duncan, 108 U. S. 32.

49 Walker v. Collins, 59 Fed. R. 70. § 287. Van Ness v. Heineke, 2 Cranch, C. C. 259.

2 Peyton v. Veitch, 2 Cranch, C. C. 123; Smith v. Coleman, 2 Cranch, C. C. 237; Centre v. Keene, 2 Cranch, C. C. 198; Waskern v. Diamond, Hempst. 701; Allen v. Blunt, 2 W. & M. 121. But see Voce v. Lawrence. 4 McLean, 203; Buckingham v. Burgess, 3 McLean, 368; Pannill v. Eliason, 3 Cranch, C. C. 358; Merrill v. Dawson, Hempst. 563; s. c. sub nom. Fowler v. Merrill, 11 How. 375.

of the name of one of several plaintiffs or defendants, is not a ground of suppressing the deposition. Pamill v. Eliason, 3 Cranch, C. C. 358; Egbert v. Citizens' Ins. Co., 7 Fed. R. 47; Merrill v. Dawson, Hempst. 563; s. c. sub nom. Fowler v. Merrill, 11 How. 375. See also Voce v. Lawrence, 4 McLean, 203. The heading of the notice: "United States of America, State of Illinois, County of Cook, ss. In the Circuit Court of the United States," was held not sufficiently irregular to avoid the deposition. Gormley v. Bunyan, 138 U. S. 623, 634. The omission of the name of the county from the caption is not a fatal defect. Van Ness v. Heineke, 2 Cranch, C. C. 259.

presence. Consent may waive objection to the person who takes down the deposition. The objection that the magistrate does not certify that the deposition was signed by the witness in his presence, is not fatal. The certificate should state whether the parties were or were not present or represented,' and show the reasons for which the deposition was taken. The notice need not be attached to the deposition. 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.10 The deposition need not state that the deposition has been sealed, provided that it appears by the envelope that the depo

4Edmonson v. Barrel, 2 Cranch, C. C. 228: Rainer v. Haynes, Hempst. 689; Pettibone v. Derringer, 4 Wash. 215. Before the amendment of May 13, 1900, it was held that the certificate should show that the magistrate reduced the testimony to writing himself, or that it was done by the witness in his presence. Cook v. Burnley, 11 Wall. 659; U. S. v. Smith, 4 Day (Conn.), 121; Bell v. Morrison, 1 Pet. 351. 355; Bussard v. Catalino, 2 Cranch, C. C. 421; 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; Elliott v. Piersol, 1 Pet. 328, 335; Cook v. Burnley, 11 Wall. 659. But see Vasse v. Smith, 2 Cranch, C. C. 31; U. S. v. Smith, 4 Day (Conn.), 121; Marstin v. McRae, Hempst. 688; Rainer v. Haynes, Hempst. 689. 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." Voce v. Lawrence, 4 McLean, 203; Burton v. Simmons, 2 Cranch, C. C. 195.

121.

Stewart v. Townsend, 41 Fed. R.

6 Van Ness v. Heineke, 2 Cranch, C. C. 259; Centre v. Keen, 2 Cranch,

C. C. 198. 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. Bussard v. Catalino, 2 Cranch, C. C. 421. But see Cook v. Burnley, 11 Wall. 659; Donahue v. Roberts, 19 Fed. R. 863.

7 Curtis v. Railway Co., 6 McLean,

401.

8 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 Cranch, C. C. 523. See supra, § 286. 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 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. Egbert v. Citizens' Ins. Co. of Mo., 7 Fed. R. 47.

9 Stewart v. Townsend, 41 Fed. R. 121.

10 Shankwiker v. Reading, 4 McLean, 240; Jones v. Neale, 1 Hughes, 268. But see Stewart v. Townsend, 41 Fed. R. 121.

13

14

sition was sealed." If the magistrate have an official seal under which he usually certifies his acts, it seems that this certificate should be under that seal.12 It seems that it will be presumed that he occupies the official position which he assumes in his certificate; certainly so if he be a notary public and certifies under his notarial seal; and this may always be proved by oral testimony like any other material fact.15 The deposition may be directed to either the judge or the clerk of the court.16 It cannot be read in evidence if intentionally opened anywhere but in court," except by consent, which it will be well to have appear by writing duly signed and filed with or indorsed on the deposition.18 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.19 If an attorney appear and crossexamine a witness without objection, he thereby waives any lack of notice, or irregularity in the notice,20 or in the form and manner of the proceedings," or, it seems, an incompetency in the witness then known to him," or any other formal defect. His presence, however, if he declines to take any part in the proceedings, does not.23 It is the safer and the usual practice for the counsel present to note on the record all objections to

11 Egbert v. Citizens' Ins. Co. of Mo., 7 Fed. R. 47, 50. 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. Re Thomas, 35 Fed. R. 337.

12 Paul v. Lowry, 2 Cranch, C. C. 628. But see Price v. Morris, 5 McLean, 4.

13 Ruggles v. Bucknor, 1 Paine, 358; Price v. Morris, 5 McLean, 4; Vasse v. Smith, 2 Cranch, C. C. 31; Whitney v. Huntt, 5 Cranch, C. C. 120. But see Tooker v. Thompson, 3 McLean, 92.

14 Dinsmore v. Maroney, 4 Blatchf. 416.

15 Paul v. Lowry, 2 Cranch, C. C. 628; Dunlop v. Munroe, 1 Cranch, C. C. 536.

16 Thorp v. Orr, 2 Cranch, C. C.

335; Whitney v. Huntt, 5 Cranch, C. C. 120.

17 Beale v, Thompson, 8 Cranch, 70; The Roscius, 1 Brown, Adm. 442; In re Thomas, 35 Fed. R. 337. The acci dental 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. Eillert v. Craps, 44 Fed. R. 164.

18 The Roscius, 1 Brown, Adm. 442. 19 Gartside Coal Co. v. Maxwell, 20 Fed. R. 187; Donahue v. Roberts, 19 Fed. R. 863; Leatherberry v. Radcliffe, 5 Cranch, C. C. 550.

20 Dinsmore v. Maroney, 4 Blatchf. 416.

21 Shutte v. Thompson, 15 Wall. 152; In re Thomas, 35 Fed. R. 822.

22 U. S. v. One Case, 1 Paine, 400. 23 Harris v. Wall, 7 How. 693.

the form of questions; and to the admission of an exhibit; and a failure to note such an objection might be held to be 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." 25 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.26 In general, all defects in form 27 or to the competency or relevancy of evidence 28 can only be raised by a motion to suppress the deposition, and seasonably made before the case is called for trial; 29 and the court may, and usually will, when such a motion is granted, allow an adjournment of the hearing in order that the testimony may be taken again, provided that the objection can then be obviated.30 The denial of such a motion is no ground for the reversal of a judgment at common law, unless upon the trial an objection is duly made to the admission of the evidence and an exception taken.31

§ 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 sixty-four, and eight hundred and sixty-five shall not apply to any depositions to be taken under the authority of this section." This statute applies to criminal prosecutions,2

24 Cf. Equity Rule 67; S. C. Rule 13. 25 Stewart v. Townsend, 41 Fed. R. 121.

26 Blackburn v. Crawford, 3 Wall. 175; Winans v. N. Y. E. R. Co., 21 How. 88. As to the transmission and identification of exhibits, see Giles v. Paxson, 36 Fed. R. 882; Bird v. Halsy, 87 Fed. R. 671; U. S. v. Fifty Boxes, 92 Fed. R. 601.

27 Claxton v. Adams, 1 MacA. (D. C.) 496; Bank of Danville v. Travers, 4 Biss. 507; Brooks v. Jenkins, 3 McLean, 432; Uhle v. Burnham, 44 Fed. R. 729, 730; Howard v. Stillwell B.

M. Co., 139 U. S. 199; Bibb v. Allen, 149 U. S. 481, 488. See Dickerson v. Matheson, 50 Fed. R 73, 75.

28 Ward v. Cochran (C. C. A.), 71 Fed. R. 127.

29 Bibb v. Allen, 149 U. S. 481, 488. 30 Luther v. The Merritt Hunt, 1 Newb. 4; Doe d. Moore v. Nelson, 3 McLean, 383.

31 Union Pac. Ry. Co. v. Reece (C. C. A.), 56 Fed. R. 288.

§ 288. 1 U. S. R. S., § 866; Jones v. Oregon C. R. Co., 3 Sawyer, 523.

2 U. S. v. Fifty Boxes and Packages of Lace, 92 Fed. R. 601.

8

informations for forfeitures, actions at law, and cases in equity.5 The words "common usage," when applied to a suit in equity, signify the ordinary practice of courts of equity. It has been held that the usage referred to is the common usage at the time of the revision of the Statutes of the United States in 1874; that it does not direct the Federal courts to adopt all subsequent laws of the States wherein they sit; that where, prior to 1874, the Federal courts within a district had adopted a practice of their own, such practice may be continued; that accordingly in the Southern District of New York, those courts, even when sitting at common law, are not bound by the sections. of the State Code of Civil Procedure regulating the execution of commissions to take testimony in foreign countries, but may take them in accordance with the old practice in the district upon written direct and cross-interrogatories; and when the answers of the witness are in a foreign language, they may be translated by the commissioner or under his direction, and only the answer, as thus interpreted be returned; 10 but that in districts where there is no settled practice the State practice should be followed."

In 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,12 but a commission to prove documents was allowed without such a condition." 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.15 Such a commission is not granted as of course, but only upon good cause shown.16 The applica

3 U. S. v. Cameron, 15 Fed. R. 794;

U. S. v. Wilder, 14 Fed. R. 393.

4 Peters v. Provost, 1 Paine, 64.

12 Hollander v. Baiz, 40 Fed. R. 659. For a case where a commission was issued to examine an expert in a

5 Bischoffheim v. Baltzer, 10 Fed. R. 1. foreign country, see Holliday v.

6 U. S. v. Parrott, 1 McAll. 447. 7 U. S. v. Fifty Boxes and Packages of Lace, 92 Fed. R. 601.

8 Ibid.

9 Ibid.

10 Ibid.

11 Ibid.; Buddicum V. Kirk, 3 Cranch, 293; Jones v. Railroad Co., 3 Sawyer, 523; s. c., Fed. Cas. No. 7,486. .

Schultzeberge, 57 Fed. R. 660.

13 Hollander v. Baiz, 43 Fed. R. 35. 14 Wellford v. Miller, 1 Cranch, C. C. 485; Russell v. M'Lellan, 3 W. & M. 157.

15 Peters v. Provost, 1 Paine, 64. 16 U. S. v. Parrott, 1 McAll. 447.