Depositions taken under the Judiciary Act of 1789.

have understood them as affecting the testimony | 1789, ch. 20. The Samuel, 1 Wheat. 9; 3 Cond. in the cause, or setting aside the solemn agree- Rep. 466. ment of the parties. The testimony is still admissible to the extent of the agreement. Vattier v. Hinde, 7 Peters, 252.

21. No one can take the benefit of a verdict, or of depositions, who would not have been prejudiced by them, had they been otherwise. Boudereau v. Montgomery, 4 Wash. C. C. R.

186.

30. If it appear on the face of a deposition, taken under the act of congress, that the officer taking the same was authorized by the act, it is sufficient in the first instance, without any proof that he was such officer. Ruggles v. Bucknor, 1 Paine, 358.

31. Objections to the competency of the witness, whose deposition is taken under the thir22. But depositions taken between other par- tieth section of the judiciary act of September ties on the same point, may be read to prove the 24, 1789, ch. 20, should be made at the time of pedigree, as hearsay, or declarations; the wit-taking the deposition, if the party attend and the nesses being dead. Ibid.

objections are known to him, in order that they may be removed; otherwise he will be presumed to waive them. United States v. One Case of Hair Pencils, 1 Paine's C. C. R. 400.

23. There are two modes of taking depositions under the act of congress. By the first, notice in certain cases is not necessary, but the forms prescribed must be strictly pursued. By 32. It seems, that it is no objection to the a subsequent part of the section, depositions competency of a deposition, that it is not signed may be taken by a dedimus potestatem, accord-by the witness. Ketland v. Bissett, 1 Wash. C. ing to common usage. In Virginia, the laws C. R. 144. of the state are to be referred to on the subject of notice. Those laws do not authorize notice to an attorney at law: the word attorney, in the act of assembly, means attorney in fact. An attorney at law is not compellable to receive notice; but he may consent to receive, or he may waive it, and shall not afterwards be permitted to object to the want of it. Buddicum v. Kirk, 3 Cranch, 293; 1 Cond. Rep. 535.

24. The letters of the plaintiff to the secretary of state, containing applications for a patent, and specifications, certified under the seal of that department, as papers remaining in that office, were properly admissible in evidence. Pettibone v. Derringer, 4 Wash. C. C. R. 215.

25. Depositions taken in evidence, without a commission or rule of court, in the state of New York, more than one hundred miles from Philadelphia, but conforming in all respects to the thirtieth section of the judiciary act of 1789, may be read in evidence. Ibid.

26. A deposition taken under the thirtieth section of the judiciary act of 1789, cannot be read in evidence, unless the judge certifies that it was reduced to writing, either by himself or by the witness in his presence. Ibid.

27. Depositions between other parties admitted by agreement, may be read on every trial of the case until it shall be finally decided. Hinde et al. v. Vattier et al., 1 M'Lean's C. C. R.

116.

28. The courts are presumed to know who can take depositions, under the laws of the state, and the official character of such persons will be presumed without further proof than their having acted as such. Jasper v. Porter, 2 M'Lean's C. C. R. 570.

33. A deposition taken under the 30th section of the judiciary act of September 24th, 1789, ch. 20, cannot be read in evidence, unless the judge before whom it is taken certify that it was reduced to writing by himself, or by the witness in his presence. Pettibone v. Derringer, 4 Wash. C. C. R. 214.

34. Where the certificate of a magistrate taking a deposition, stated it to have been written in his presence, without saying by whom; and it appeared that the substance of it had been reduced to writing by the deponent, ten days before, at a different place, when the magistrate was not present; such deposition is not admissible in evidence. United States v. Smith, 4 Day, 121.

35. To authorize a deposition, taken under the act of September 24th, 1789, ch. 20, to be read in evidence, all the ceremonies prescribed by the act must be observed. The act requires that the deposition shall be retained by the magistrate taking it, until he deliver the same with his own hand into the court for which it is taken; or shall, together with the reason of its being taken, notice, &c., be by him sealed up and directed to such court. North Carolina Cases, 81.

36. The authority given by the act of congress of the 24th September, 1789, ch. 20, to take depositions of witnesses, in the absence of the opposite party, is in derogation of the rules of the common law, and has always been construed strictly; and, therefore, it is necessary to establish that all the requisites of the law have been complied with, before such testimony is admis sible. Bell v. Morrison et al., 1 Peters, 355.

37. The certificate of the magistrate taking the deposition, is good evidence of the facts stated therein, so as to entitle the deposition to

2. Depositions taken under the Judiciary Act of be read to the jury, if all the necessary facts are

1789.

29. That the deponent is a seaman, on board a gun boat in harbour, and liable to be ordered to some other place, and not to be able to attend the court at the time of its sitting, is not a sufficient reason for taking his deposition de bene esse, under the judiciary act of September 24,

there sufficiently disclosed. Ibid. 356.

38. It should plainly appear, from the certificate of the magistrate, that all the requisites of the statute have been fully complied with; and no presumption will be admitted to supply any defects in the taking the deposition. Ibid.

39. In the caption of a deposition taken before the mayor of Norfolk, to be used in a cause de

Depositions taken under a Commission, or Dedimus Potestatem.

pending, and afterwards tried in the circuit court | word is used to denote the written testimony of of the United States held in Baltimore, the mayor witnesses, in contradistinction to oral testimony. stated the witness "to be a resident in Norfolk ;" United States v. Coolidge, 1 Gallis. C. C. R. 488. and, in his certificate, he states that the reason 44. A deposition of a witness residing in the for taking the deposition is, "that the witness state, above one hundred miles from the place lives at a greater distance than one hundred of holding the court, taken under a rule entered miles from the place of trial, to wit, in the bo- by the plaintiff in the clerk's office, but not in rough of Norfolk." It was sufficiently shown conformity with the requisitions of the thirtieth by this certificate, at least prima facie, that the section of the judicial act, cannot be read in eviwitness lived at a greater distance than one hun-dence. Evans v. Hettick, 3 Wash. C. C. R. 408. dred miles from the place of trial. The Patapsco Insurance Co. v. Southgate et al., 5 Peters, 604.

40. The provisions of the thirtieth section of the act of congress, entitled “an act to establish the judicial courts of the United States," which relate to the taking of depositions of witnesses, whose testimony shall be necessary in any civil | cause depending in any district in the courts of the United States, who reside at a greater distance than one hundred miles from the place of trial; are not confined to depositions taken within the district where the court is held. Ibid.

41. In all cases where, under the authority of an act of congress, a deposition of a witness is taken, de bene esse, except where the witness lives at a greater distance from the place of trial than one hundred miles; it is incumbent on the party for whom the deposition is taken, to show that the disability of the witness to attend continues: the disability being supposed temporary, and the only impediment to compulsory attend

ance.

The act declares expressly, that unless this disability shall be made to appear on the trial, such deposition shall not be admitted or used on the trial. This inhibition does not extend to the deposition of a witness living at a greater distance from the place of trial than one hundred miles; he being considered beyond a compulsory attendance. Ibid.

45. A deposition, taken before the trial, of an informer, who is entitled, under the act of congress, to a portion of a fine, forfeiture or penalty, is not admissible evidence. The act of congress only makes such an informer a competent witness, when "he shall be necessary as a witness on the trial;" of which necessity the court must judge after hearing the other testimony. Thomas & Henry v. The United States, 1 Brockenb. C. C. R. 367.

46. A party who offers as evidence in an appellate federal court, a deposition taken de bene esse, must show that the requisites of the judiciary act have been complied with, viz., that the deponent is dead, out of the United States, or gone to a greater distance than one hundred miles, &c.; and unless he does this, the deposition cannot be read. Ibid.

3. Depositions taken under a Commission, or Dedimus Potestatem.

47. There are two modes of taking depositions under the act of congress. By the first, notice in certain cases is not necessary; but the forms prescribed must be strictly pursued. By a subsequent part of the section, depositions may be taken by a dedimus potestatem, according to common usage. In Virginia, the laws of that state are to be referred to on the subject of notice. Those laws do not authorize notice to an attorney at law; the word attorney, in the act of assembly, means attorney in fact. An attorney at law is not compellable to receive notice; but he may consent to receive, or he may waive it, and shall not afterwards be permitted to object the want of it. Buddicum v. Kirk, 3 Cranch, 293; 1 Cond. Rep. 535.

42. The deposition of a witness living beyond one hundred miles from the place of trial, may not always be absolute; for the party against whom it is to be used may prove the witness has removed within the reach of a subpoena, after the deposition was taken; and if that fact was known to the party, he would be bound to procure his personal attendance. The burden of 48. If notice is given that a deposition will be proving this would rest upon the party opposing taken on the 8th of August, and that if not taken the admission of the deposition in evidence. in one day, the commissioners will adjourn from For a witness whose deposition is taken under day to day, until it be finished; and the comsuch circumstances, it is not necessary to issue missioners meet on the 8th, and adjourn from a subpoena. It would be a useless act; the wit-day to day, till the 12th, and from the 12th to ness could not be compelled to attend personally. Ibid.

the 19th, when the deposition is taken; such deposition is not taken agreeably to notice. Bleecker v. Bond, 3 Wash. C. C. R. 529.

plaintiff had not notice of the time and place of taking the same. Yeaton v. Fry, 5 Cranch, 835; 2 Cond. Rep. 273.

43. Besides the ordinary and usual meaning of the word, deposition is confined to written 49. Depositions taken under a commission testimony, at least in legal proceedings; and in issued at the instance of the defendant, may be legislating on this subject, congress must be pre-read in evidence by the plaintiff, although the sumed to use the language in its legal sense. It is believed that no instance will be found in the laws of the United States, where it is used in any other sense. In the act of 24th September, 1789, ch. 20, sect. 30, in which congress have provided for taking the depositions of witnesses, under certain circumstances; the language is, that "the deposition of such person may be taken:" and throughout the whole section, the

50. Depositions taken according to the proviso in the thirtieth section of the judiciary act of September 24, 1789, ch. 20, under a dedimus potestatem, according to common usage, when it may be necessary to prevent a failure or delay of justice, are under no circumstances to be con

Depositions taken under a Commission, or Dedimus Potestatem.

sidered as taken de bene esse, whether the witness resides 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 Wheat. 508; 4 Cond. Rep. 522.

51. A deposition, taken under a commission, is fatally defective, if the general interrogatory, "Do you know any thing farther?" &c., is not answered. Richardson v. Golden, 3 Wash. C. C.

R. 109.

| taking the same was authorized by the act, it is sufficient in the first instance, without any proof that he was such officer. Ruggles v. Bucknor, Paine's C. C. R. 358.

64. In an action on a policy of insurance, grounded upon the incapacity of the vessel, by damage incurred by stress of weather, to prosecute the voyage, the warrant of survey and the report are a judicial proceeding, and in writing, and parol evidence of their contents is inadmissible. Nor is a certificate from the register of the vice-admiralty court, where the proceedings took place, that the warrant was lost, evidence. It should be established under a commission. Robinson v. Clifford, 2 Wash. C. C. R. 1.

52. So, if the witness is merely asked whether an ex parte affidavit, previously given by him of the facts, contains the truth, the deposition is bad: he should have been interrogated 65. If the general interrogatory, under a comas to the facts contained in the affidavit. Ibid. mission to take testimony, be not answered, it is 53. A deposition, though to prove a pedigree, a fatal objection to the whole deposition. All cannot be read, if taken before other persons the interrogatories must be substantially anthan those mentioned in the commission. Les-swered. Dodge v. Israel, 4 Wash. C. C. R. 323. see of Burnet v. Day, 3 Wash. C. C. R. 243.

66. Query, If it be not an objection to a depo54. All proper interrogatories on each side sition that it was committed to writing by the must be answered by the witness, or the depo- witness, before he was sworn? And whether sition cannot be read. If the questions are hy-exhibits referred to in a deposition ought not to pothetical, and in a certain event only are required to be answered, which event does not happen; or if they refer to records which must speak for themselves, they need not be answered. Bell v. Davidson, 3 Wash. C. C. R. 328.

be annexed by the commissioners to the deposition, or so designated by them as to leave no reasonable doubt of their identity? Ibid.

67. If reasonable notice to the adverse party of formal objections to a deposition be not given, 55. If a commission issue to A and B, or either the court may be induced to set aside a verdict of them, to take depositions of witnesses, the │or nonsuit, rendered in consequence of this obdeposition of A may be taken before B. Lons-jection, without costs. Ibid. dale v. Brown, 3 Wash. C. C. R. 404.

56. A commission, directed to be executed by P. in the parish of A., cannot be executed by him out of that parish. The commissioner ought to state where it was executed, and should show that he has pursued his authority. Boudereau et al. v. Montgomery, 4 Wash. C. Č. R. 186.

57. If the cross interrogatories are not put to a witness examined under a commission, the deposition cannot be read. Gilpins v. Consequa, Peters' C. C. R. 85.

58. The commissioners, in executing a commission, though nominated by the parties, act under the appointment, and are the agents of the court, not of the parties. Ibid.

59. Nor is it an objection that the cross interrogatories were not put to each witness immediately after he had answered the interrogatories in chief, but were put to him after the examinanation of all the witnesses on the interrogatories in chief. Ibid.

60. Nor is it an objection that the commissioners and their clerk were not sworn. Ibid.

61. If all the interrogatories are substantially, although not formally answered, it will be sufficient; and this is the rule even in regard to a commission. Nelson et al. v. The United States, Peters' C. C. R. 235.

62. The testimony of a witness, taken under a commission to five persons, or any one of them, cannot be read in evidence, if another person than the commissioners, and not named in the commission, assisted in taking the examination. Willings et al. v. Consequa, Peters' C. C. R. 301. 63. If it appears on the face of a deposition taken under the act of congress, that the officer

68. Depositions taken under a commission to another state, cannot be read unless proof be given that a copy of the interrogatories, and a written notice of the rule, and of the names of the commissioners, was served on the opposite party or his attorney, according to one of the rules of the circuit court. Lessee of Rhoades and Snyder v. Selin et al., 4 Wash. C. C. R. 715.

69. It is no objection to a deposition, that a material part of the evidence comes out under the general interrogatory. Ibid.

70. A commission issued to take depositions, under a rule to take them at Selinsgrove, and endorsed "Commission to Selinsgrove." It should appear, by the certificate of the commissioners, or otherwise, that the depositions were taken at the place indicated, or they cannot be read. Ibid.

71. The rule is, that depositions taken under a commission within the western district of Pennsylvania, more than one hundred miles from Philadelphia, are not absolute, but de bene esse, in the circuit court of Pennsylvania. Ibid.

72. A joint commission to take a deposition must be executed by all the commissioners, although the commissioner named by the party against whom the witness is offered, after proceeding some length in the examination, withdrew, and refused to complete it. Munns v. Dupont et al., 3 Wash. C. C. R. 31.

73. All proper interrogatories must be answered on both sides, or the deposition cannot be read. Bell v. Davidson, 3 Wash. C. C. R. 328.

74. If the interrogatories are hypothetical, and in a certain event only are required to be an

Depositions taken under a Rule of Court.-Deputy-Collector.-Derelict. swered, which event does not happen; or if they by the same person at the same time. United refer to records which must speak for themselves, States v. Morse, 3 Story's C. C. R. 87. they need not be answered. Ibid. 2. The fifteenth section of the same act,

75. A deposition taken on the direct interro-limiting the emolument of the deputy-collector gatories cannot be read, if the cross interrogato- to one thousand dollars, applies only to the ries were not put; and the omission will destroy emolument received by him as deputy-collector, the deposition, whether it was the act of the and does not prevent him from receiving adcommissioners named by either party. Gilpins ditional compensation for independent offices in v. Consequa, 3 Wash. C. C. R. 184. the customs held by him at the same time. Ibid.

76. It is no objection to a deposition, that it is written in English, although the commissioners were Dutchmen, and it does not appear, that there was a sworn interpreter; and that the witnesses were examined upon the cross interrogatories, at the time they answered in chief, but answered them afterwards, or that the clerk of the commissioners was not sworn. Ibid.

4. Depositions taken under a Rule of Court. 77. The deposition of a witness now dead, as to pedigree, may be read for that purpose only; though it was taken in another cause, between other parties, and on a different subject. Barent and Wife's Lessee v. Day, 3 Wash. 243.

3. A deputy-collector is not bound by that act to perform the duties of inspector. Ibid.

DERELICT.

1. The cases of dereliction, in which the maxim of occupantis fiunt derelicta is founded, generally on a voluntary abandonment by the owner with his free consent; and not on such a relinquishment as force, necessity, or danger compel. The instances of wreck, or goods thrown overboard to lighten the vessel, may be given to elucidate the doctrine; and these are recoverable on payment, or tender of salvage. It would seem, that little prospect of recovering the goods thrown overboard to lighten the ves79. A witness whose depositions had been sel could exist, yet the right of recovery is not taken de bene esse, must be proved to have lost; but on proof of the property, they are rebeen served with a subpoena, and that he is un-coverable on payment or tender of salvage, if able to come; unless he is so old, and generally so infirm, that his attendance could not be expected; the age of sixty-five is not of itself sufficient to entitle it to be read. Ibid.

78. A deposition taken under a rule of court, and sworn to before a justice of the peace, may be read; the provisions of the judiciary act refer to depositions taken without such rule. Ibid.

80. A deposition, though merely to prove a pedigree, if taken by others than those named in the commission, cannot be read. Ibid.

81. A deposition taken de bene esse, was offered in the district court, on behalf of the United States; to which it was objected, "that it was not taken and returned according to law." Held, in the appellate court, that this objection must be considered as applying to it as a deposition in chief, and does not dispense with the necessity of proving those circumstances which would have entitled the attorney for the United States to read it as a deposition taken de bene esse. Thomas and Henry v. The United States, 1 Brockenb. C. C. R. 367.

either driven on shore, or taken flotsam or jetsam. Warder et al. v. Goods saved from La Belle Creole, 1 Adm. Decis. 36.

2. Á French vessel, La Belle Creole, was found at sea by the Amiable, an American vessel, in a perishing and hopeless condition. The Amiable remained by the Creole at some risk, and with considerable delay; and took out the officers and crew, who assisted in saving part of the ship's furniture and cargo, which were brought into the United States, and the vessel abandoned. A claim against the goods as derelict was dismissed, and one-third of the gross amount of the sale decreed as salvage. Ibid.

3. However long goods may have been on the ocean, thrown overboard by a vessel in distress, they do not become derelict by time, but will be restored on payment of salvage; unless there was a clear intention to abandon the goods. Bee's Ad. Rep. 82.

82. Where the party against whom a deposition is taken, expressly waives all objection to 4. The rate of salvage on derelicts, should it; this, generally, must be understood as ex-not, in ordinary cases, range below a third, or tending to the deposition, only in the character above a moiety of the property. Rowe et al. in which it was taken, and not as imparting any Libellants, 1 Mason's C. C. R. 372. new character to it, not intended by the party taking it. Thus, where a deposition was taken de bene esse, and the adverse party waived all objection, such a waiver does not make it a deposition in chief. Ibid.

DEPUTY-COLLECTOR.

1. Under the act of 1822, ch. 107, the offices of deputy-collector and of inspector may be held VOL. I.-47

5. A case of derelict can occur only where the property has been abandoned, without the hope or intention of recovery. Tyson v. Pryor, 1 Gallis. C. C. R. 133.

6. Where the master and crew had left their vessel in a sinking condition, and taken to the long boat, and were picked up by another vessel, while yet in sight of the wreck; the vessel and cargo thus left, are considered as derelict, in the admiralty. The Schooner Boston, 1 Sumner's C. C. R. 328.

7. In cases of derelict, the habit of the admiralty is to allow one-fourth as salvage. That

3 U

Descent.

proportion is not departed from, unless under tion is implied from the context, or known prinextraordinary circumstances. The Ship Henry ciples of law. Ibid. 87. Ewbank, 1 Sumner's C. C. R. 400.

DESCENT.

1. Under the statute of descents of Rhode Island of 1822, brothers and sisters of the half blood, inherit equally with those of the whole blood. Gardner v. Collins, 3 Mason, 398.

2. The statute of descents of Rhode Island of 1822, enacts, "that when any person having title to any estate of real inheritance shall die intestate as to such estate, it shall descend, and pass in equal portions to his or her kindred in the following course." It then provides, "if there be no father, then to the mother, brother, and sister of such intestate, and their descendants, or such of them as there be;" and then declares, in the nature of a proviso, that "when the title to any estate of inheritance, as to which the person having such title shall die intestate, came by descent, gift, or devise, from the parent or other kindred of the intestate, and such intestate die without children; such estate shall go to the kin next to the intestate, of the blood of the person from whom such estate came or descended, if any there be." Gardner v. Collins, 2 Peters, 58.

5. A descent from a parent to a child cannot be construed to mean a descent through, and not from a parent. So a gift or devise from a parent, must be construed to mean a gift or devise by the act of that parent, and not by that of some other ancestor more remote passing through the parent. Ibid. 90.

6. It is true, that in a sense an estate may be said to come by descent from a remote ancestor to a person upon whom it has devolved, through many intermediate descents. But this, if not loose language, is not that sense which is ordinarily annexed to the terms. When an estate is said to have descended from A to B, the natural and obvious meaning of the words is, that it is an immediate descent from A to B. Ibid. 91. 7. At the common law, a man might sometimes inherit, who was of the whole blood of the intestate, who could not have inherited from the first purchaser. As in the case of a purchase of an estate by a son, who dies without issue, the father may inherit the same from the uncle, although he could not inherit from his own son. Ibid. 93.

8. By the law of descent of Maryland, a person claiming as heir must prove himself heir of the person last seised of the estate; and if an intestate leaves a brother of the whole blood, who survived him and died without issue, and 3. An estate situated in Rhode Island was de- without having ever been actually seised of the vised by John Collins to his daughter, Mary Col-estate, the estate will descend to the half blood lins, in fee; Mary Collins intermarried with of the person so seised. Chirac v. Reinecker, 2 Caleb Gardner, and upon her death in 1806, the Peters, 625. estate descended to her three children, John, George, and Mary C. Gardner. John and George Gardner died intestate and without issue, and Mary C. Gardner, as heir to her brothers, became seised of the whole estate, and died in 1822. Held, that under the provisions of the law of descents of Rhode Island, two-thirds of the estate of Mary C. Gardner descended to Samuel F. Gardner, Eliza Phillips, formerly Eliza Gardner, and Mary Clarke, formerly Mary Gardner, children of Caleb Gardner by a former marriage; they being brothers and sisters of the half blood of Mary C. Gardner: it being admitted that the remaining one-third, which Mary C. Gardner took by immediate descent from her mother, belongs to the heirs of the whole blood of John Collins. Ibid. 86.

4. The phrase "of the blood," in the statute, includes the half blood. This is the natural meaning of the word "blood," standing alone, and unexplained by any context. A half brother or sister is of the blood of the intestate: for each of them has some of the blood of a common parent in his or her veins. A person is with the most strict propriety of language affirmed to be of the blood of another, who has any, however small, a portion of the same blood derived from a common ancestor. In the common law, the word "blood" is used in the same sense. Whenever it is intended to express any qualification, the word whole or half blood is generally used to designate it or the qualifica

9. It is admitted that the title of an heir by descent in the real estate of his ancestor, and of a devisee of an estate unconditionally devised to him, is, upon the death of the party under whom he claims, immediately devolved upon him, and he acquires a vested estate. But this, though true in a general sense, still leaves his title incumbered with all the liens, which have been created by the party in his lifetime, or by law at his decease. It is not an unqualified, though it may be a vested interest, and it confers no title, except to what remains after every such lien is discharged. Wilkinson v. Leland et al., 2 Peters, 658.

10. By the laws of Rhode Island, as well as of all the New England states, the real estate of intestates stands chargeable with the payment of their debts upon a deficiency of assets. Ibid.

11. Descents are, as is well known, of two sorts, lineal, as from father to son, or grandfather to son or grandson; and collateral, as from brother to brother, and cousin to cousin, &c. They are also distinguished into mediate and immediate. But here the terms are susceptible of different interpretations; which circumstance has introduced some confusion into legal discussions, since different judges have used them in different senses. A descent may be said to be mediate or immediate, in regard to the mediate or immediate descent of the estate or right; or it may be said to be mediate or immediate, in