ing truth from such sources. Such a course of sifting out truth in doubtful cases cannot be pursued here." (13 Howard, 283.)

Perhaps the most remarkable comment upon testimony by depositions, taken by the chancery method, will be found in 3 English Law and Equity Reports, 73, where the case had been heard, by consent, upon affidavits, about two hundred

in number.

Some disparagement of this species of testimony had been expressed in the argument. The Vice-Chancellor (Knight Bruce) gave his views at some length upon the relative value of evidence given by affidavit and by deposition, and said "that he was far from acceding to the opinion that universally or even necessarily depositions upon interrogatories are preferable to affidavits for the purpose of trying questions of fact, whether simple or complicated. And as to proof vivá voce, although often useful, and sometimes indispensable, cross-examination at law is sometimes, in skillful and often in unskillful hands, a weapon that recoils, and not very unseldom an instrument of injustice. But in equity it is something that, sitting here, I would rather not characterize. Considering that here the party cross-examining knows neither the answers that have been given by the witness nor the questions that have been addressed to him in chief, it ought not to excite surprise that in equity it is generally of no use whatever."

Notwithstanding these acknowledged infirmities had been exposed by the testimony taken and the reports made by the various English commissions for the reform of their law and chancery procedure, they were left without remedy; and until the Judicature Acts of 1873 and 1875, the old system of taking depositions continued in force. The sweeping provisions of those statutes have emancipated the subject so far from all the ancient forms, that the courts may now at

any time, for sufficient reason, order that facts may be proved by affidavit at the trial or hearing, on such conditions as the judge deems reasonable. (Orders 37 and 38, under sec. 20, Act of 1875.)

The committee feel some hesitation in recommending the Association at present to propose a similar advance in procedure in this country.

But in this country much of the frailty and imperfection which have led to the rejection of depositions and using affidavits instead, as in England, do, from other causes as well as this, attend the more free and open methods under which the taking of depositions has so long been practised.

The chief and obvious evil in the practice as it now prevails, is the inexperience and incapability of the officer who generally may now be employed to take depositions; especially in states where, upon a mere notice of the time and place, it is left to the attorney taking the deposition to select his own officer among any of the classes authorized, and not unfrequently a clerk or student in his office, conveniently equipped with a notary or master's commission. Nothing, of course, can inform the court or jury of the witness's manner or conduct; and as to that which is next in importance the exact reproduction of his words as uttered-none but an experienced reporter is at all capable. And besides these difficulties, the prompting, the interruptions, and the interferences, which constantly beset the taking of depositions, require a control which few justices of the peace, mayors, or even notaries comprehend or

exercise.

By reference to the Appendix it will be seen that in a few of the states the authority to take depositions is conferred upon a special officer, known in some states as commissioners and in others as examiners, and who are appointed by the court in each county.

This seems to the committee the simplest and most effectual mode of establishing a competent and independent class of officers for this duty. To make the office what is essential to justice, requires that it shall be exclusive and confined to a limited number.

In the second place, the Association might well invite the adoption, in all the states, of a law requiring witnesses to attend and testify in their own place of residence, upon proper requisition from another state or country, and also punishing perjury in such cases.

The committee further suggest, as worthy of consideration, the practice in certain states above referred to, by which the party served with notice or commission to take depositions in another state or country shall have the option, by prompt action, of requiring that the deposition shall be taken upon interrogatories and cross-interrogatories accompanying the notice, and without the attendance of parties or attorneys. RUFUS KING,

GEO. W. BIDDLE,

Committee on Judicial Administration, etc.

APPENDIX.

CONTAINING AN ABSTRACT OF THE REPORTS MADE BY THE VICE-PRESIDENT IN EACH OF THE STATES, IN REPLY TO THE INQUIRIES STATED IN THE FOREGOING REPORT, CONCERNING THE LAW AND PRACTICE IN TAKING DEPOSITIONS AND PERPETUATING TESTIMONY.

I. What modes of proceeding are allowed, whether by commission from court, or by mere notice inter partes, or otherwise?

In Delaware, Maryland, Mississippi, and South Carolina the only mode is by commission issuing out of court.

In Illinois, Massachusetts, Michigan, Missouri, Pennsylvania, New York, and Vermont the mode is by commission, if the depositions are to be taken out of the state. In Georgia the same rule applies if taken out of the county.

In Connecticut, New Hampshire, Vermont, and West Virginia depositions may be taken upon notice merely, but it is issued by a justice of the peace, notary public, or other authorized officer in the form of a citation.

In all the other states depositions may be taken by notice inter partes, or by commission out of court, as the parties may prefer, whether the witnesses be in or out of the state.

In New York and Pennsylvania letters rogatory are used in taking testimony in foreign countries.

II. By what officers or persons depositions may be taken? To avoid repetition, it may be said that commissioners are appointed in all the states (usually by the governor) to take depositions or affidavits, as well as acknowledgment of deeds in the other states, and generally, but not universally, the consuls and secretaries of legation of the United States in foreign countries have similar authority.

The class of officers authorized in the several states to take depositions are as follows:

Arkansas.-The commissioner named, or any person authorized to administer an oath, and whether in or out of the state.

California. A judge or any other person authorized to administer an oath.

Connecticut.-Any justice of the peace, notary public, or person authorized to administer an oath.

Delaware. The commissioners named by the commission. Georgia.-Commissioners appointed by the courts in each county to take depositions.

Illinois-Any judge, master in chancery, notary public, justice of the peace; or if the witness be in the army or navy, before any commissioned officer in the service.

Indiana.-Any judge, justice of the peace, notary public, mayor, or recorder of a city, or clerk of a court of record. Iowa.-Any person authorized to administer oaths. If on commission and no commissioner named, it may be executed by any judge, clerk of court of record, or notary public.

Kentucky-Any examiner, judge, or clerk of court, if within the state. Depositions may be taken out of the state by a Kentucky commissioner, or by a judge, justice of peace, notary public, or mayor.

Maine.-Any justice of peace, notary public, or judge of a court of record.

Maryland.-The commissioner named in the commission. Massachusetts. Any justice of the peace, if within the state. If out of the state, any justice of the peace, notary public, or officer authorized to take depositions by the law of the place, but in this last case it is discretionary with the court as to admissibility.

Michigan.-Any justice of the peace, judge of Circuit Court, or commissioner for the county.