before commis rupt. istered according to the form of their several religions; and these depositions, duly taken and returned, in the form prescribed by the act, are to be allowed and deemed as good and competent evidence, as if the witness had been sworn at the trial, and examined viva voce. Depositions The depositions of witnesses, taken by commissioners sioners of bank- of bankrupt, could not formerly be given in evidence, in an action to try the question of bankruptcy or any other question connected with it, because in these proceedings the parties interested had not the power of crossexamining the witnesses.(1). But now, by the statute 5 Geo. 2. c. 30. s. 41. "Upon petition of any person to the great seal, praying that the commission and the depositions taken thereon, or any part of such depositions and any other matter or thing relating to the commission or the proceedings thereon, may be entered of record, the great seal may direct them to be entered of record; and in case of the death of the witnesses proving the bankruptcy, or in case the commission, depositions, proceedings, or other matters or things, be lost or mislaid, a true copy of the record of such commission, deposition, and proceedings, or other mat * 274 (1) 2 Roll. Ab. 679. pl. 9. Bull. N. P. 242. States, but only to cases in the district and circuit courts. Testimony by depositions can be regularly taken in the Supreme Court, only under a commission issuing according to its rules. The Argo, Wheaton Rep. 287. · Depositions taken according to the proviso in the 30 s. of the judiciary act of 1789. c. 20. under a dedimus potestatem according to the common usage, when it may be necessary to prevent a failure or delay of justice, are under no circumstan ces to be considered as taken de bene esse, whether the witnesses reside beyond the process of the court or within it; the provisions of the act relative to depositions de bene esse, being confined to those taken under the enacting part of the section. Sergeant's Lessee v Biddle et al. 4 Wheaton 508. The following cases relate to depositions taken de bene esse, and on commissions in the United States Courts: Grant v Naylor, 4 Cranch Rep. 224, Cranch 70. The Argo, 2 Gullison Rep. 314. 85. Lessee of Brown v Galloway, 1 Peter's 291. 1 Peter's 301. Beale v Thompson & Moris, 8 Gilpins v Consequa, 1 Peter's Rep. Willings & Francis v Consegun, ters or things, signed and attested as therein mentioned, may, upon all occasions, be given in evidence to prove such commission, and the bankruptcy of such person against whom the commission issued, or other matters or things."(a) These depositions, when recorded, are evidence in an action at law, to prove the precise time, when the act of bankruptcy was committed;(1) for the witness cannot tell his story before the commissioners, without saying when the act of bankruptcy was committed. He must mention that naturally and of course, and therefore is the more likely to speak the truth. In many cases, its being an act of bankruptcy depends on the time. The legislature considered the commissioners as indifferent persons, examining the witnesses with impartiality, and [292] taking care of the interests of all parties.(2) The statute 49 G. 3. c. 121. s. 10., enacts, that in all actions brought by or against assignees, the commission and the proceedings of the commissioners are to be received as evidence of the petitioning creditor's debt, and of the trading and bankruptcy, unless the other party in the action, if defendant, at or before the time of pleading to the action, and, if plaintiff before issue joined, give notice in writing to such assignee, that he intends to dispute the same. And by section 11. of the same act, in all suits in equity by or against assignees, the commission and proceedings are to be received as evidence of the petitioning creditor's debt, and of the trading and bankruptcy, against all the *other parties in the suit, unless such parties, some or one of them, within (1) Janson v Wilson, 1 Doug. 257. (2) By Ld. Mansfield, ib. (a) Certified copies of the proceedings, filed in the District Court of the commissioners under the late bankrupt law of the U. S. were held prima facie evidence, against all persons of the commission, trading, and act of bankruptcy. Rugan v West, 1 Binney 263. * 275. ten days after rejoinder in the cause, give notice in writing to the assignees, that they intend to dispute the same. This statute applies only to those cases, where the as signees are parties to the action. In an action between third persons, if the validity of a commission of bankruptcy comes incidently into question as a ground of defence, it must be regularly proved, as it would have been before the passing of the statute. (1) But the statute is not confined to cases where the assignees are named as such upon the record; and will apply, where the. opposite party knows, that they make out their title under the commission. (2) When the proceedings are offered in evidence, it will be sufficient to prove that they came out of their proper custody, (namely, that of the solicitor to the commission,) or to prove the hand writing of one of the commissioners, before whom they were taken. (3) Such evidence is necessary, although there has not been any notice of an intention to dispute their validity. The statute requires the notice, on the part of the plaintiff, to be given before issue joined. A notice, [291] therefore, delivered at the time of delivering the issue with notice of trial, is plainly insufficient. (4) The notice by the defendant is to be given at or before the time of pleading; and if he has been permitted by the court to withdraw his plea and plead de novo, the last plea must be considered the party's plea to all purposes, and a notice given at the time of pleading such plea is a sufficient compliance with the statute. (5) With respect to the serving of the notice, service on the assignee in person is not necessary; a delivery of the notice to the attorney of the party is the best for all practical uses, and will be sufficient; but it is not a good service to deliver the notice to a servant at the dwelling-house of the assignee. (1) A notice, that the defendant means to dispute the validity of the commission, is not to be considered as part of his evidence in the cause, but may be proved at the beginning of the trial, and immediately calls on the plaintiff to support the commission in the same manner as before the act passed. (2) The words of the statute are, that the commission and the proceedings of the commissioners are to be received as evidence of the several matters there specified, unless the other party give notice in writing, that he intends to dispute the same. If such notice is not given, the proceedings are prima facie evidence; but not conclusive, as was at first supposed.(3) The bankrupt, in an action against the assignees, may call witnesses to contradict the depositions respecting the petitioning creditor's debt, the trading or the bankruptcy, although he has not given such a notice to the assignees.(4) The examination of a bankrupt before the commissioners is evidence against him, although the questions were improperly put to him with a view to the action, (5) and though he might have demurred to them as exposing him to penalties. (6) If the witness examined before the commissioners, has signed the examination after it was read to him, it must obviously be immaterial with respect to the question of admissibility, whether every word used by him was taken down, or only the substance of what appeared to be relevant.(7) And if he refers in his examination to a written document, as containing a (294) * 276 Depositions statement of the facts to which he is questioned, that document may be read as part of his examination.(1) As the proceedings are made evidence by the statute, the deposition of the petitioning creditor is admissible evidence of the petitioning creditor's debt, though he. himself would not have been a competent witness to support the commission. (2) Only such of the depositions, as are read, are to be considered as given in evi dence. The opposite party cannot inspect any other deposition, for the purpose of cross-examining a wit ness; but he may afterwards call for that deposition, and read it in evidence for the purpose of contradicting him.(3) The proceedings are kept for the benefit of the creditors, and there is no right to inspect them as public documents. In an action of assumpsit for a creditor's share, under an order of commissioners of bankrupt for a dividend, the proceedings of the commissioners are conclusive evidence of the debt, against the bankrupt's assignees: (4) where the debt has been once liquidated before the commissioners, it cannot be litigated, except on an application to the great seal. But on an indictment for perjury, charged to have been committed by the defendant in passing his examination before the commissioners, strict evidence of the bankruptcy seems to be necessary, and the commission and proceedings under it will not be sufficient proof; for the authority of the commissioners in taking the examination is grounded, not in the commission, but in the bankruptcy. (5) Justices of the peace are enabled and directed to take before justice of the depositions of witnesses in cases of felony, by the statutes 1 & 2 Ph. & M. c. 13. s. 4. and 2 & 3 Ph. & M. peace. (295) Campb. (1) Falconer v Hanson, 171. (3) Bluck v Thorne, 4 Campb. 191. |