upon the common principles of the maritime law, it would. be merely presumptive evidence of it. The fact of absence, without leave, must, however, be entered on the log-book on the very day of its occurrence, as an indispensable pre-requisite to this statute forfeiture; and hence the log-book becomes the indispensable and only competent evidence of the fact. It is not sufficient merely to state, that the seaman was absent, or, that he left the ship; it must also be stated. that it was without leave, with the entry of his name.2 § 430. But though the log-book is thus made indispensable to the proof of a statute forfeiture of wages, it is not incontrovertible; but the charge of desertion may be repelled by proof of the falsity of the entry, or, that it was made by mistake.3 § 431. In order to admit the log-book in evidence, it ought regularly to be pleaded in the answer. But this rule does not seem to be always strictly enforced. In a suit for wages, a log-book, brought into Court by the owners, not pleaded, but asserted to be in the handwriting of the mate, who was the libellant, was permitted to be adverted to, though resisted by the other party. The affidavit of the master, in explanation of the log-book, accompanied by a letter written by him recenti facto, has been received. But letters written by the 1 Cloutman v. Tunison, 1 Sumn. 373, 380; The Rovena, Ware, R. 309, 312, 313; Spencer v. Eustis, 8 Shepl. 519. And see Coffin v. Jenkins, 3 Story, R. 108; Wood v. The Nimrod, Gilp. 83; Snell v. The Independence, Id. 140; Knagg v. Goldsmith, Id. 207. By the Stat. 7 and 8 Vict. c. 112, § 7, it is incumbent on the owner or master, in such cases, to establish the truth of the entry in the log-book, by the evidence of the mate, or other credible witness. 2 Abbott on Shipping, p. 468, note by Story; Curtis on Merchant Seamen, p. 54, 134-136; The Rovena, Ware, R. 309, 314. 3 Orne v. Townsend, 4 Mason, 541; Malone v. The Mary, 1 Pet. Adm. R. 139; Jones v. The Phoenix, Id. 201; Thompson v. The Philadelphia, Id. 210. 4 The Malta, 2 Hagg. 158, n. 5 L'Etoile, 2 Dods. 114. master to his owners immediately after a seaman had left the ship, informing them of his desertion, are inadmissible as evidence of that fact; nor will an extract from a police record abroad be received in proof of a mariner's misconduct.2 § 432. There are other documents, admissible in Courts of Admiralty as evidence in maritime cases, which are required by the laws of particular nations, or by treaties, the consideration of which belongs rather to the general law of shipping than to the law of evidence. Among these may be mentioned the Sea Letter, which declares the nationality of the ownership, and commends the vessel to the comity of nations; the Mediterranean passport, required by treaties with the Barbary powers, and intended for protection against their cruisers; The Certificate of Property; the Crew-List, MusterRoll, or Rôle d'Equipage, for the protection of the crew in the course of the voyage during a war abroad; the Inventory of the ship's tackle, furniture, &c., and of the several ship's papers relative to the voyage, for proof against captors, both of the dismantling of the vessel, and of the destruction or suppression of her documents; and the Manifest, Invoices, Certificates of Origin, and other documentary proofs of the character of the cargo.4 4. DEPOSITIONS. § 433. The testimony of witnesses in civil causes of Admiralty jurisdiction, in the Courts of the United States, is ordinarily received viva voce, in summary causes, such as those for seamen's wages, and the like; but in those of a graver character, especially if expected to be carried to the Supreme 1 The Jupiter, 2 Hagg. 221. 2 The Vibilia, 2 Hagg. 228, n. 3 U. S. Treasury Circular, Feb. 25, 1815. 4 See Jacobsen's Sea Laws, Book I, ch. iv, v; Book III, ch. iv; Commercial Code of France, art. 226; Arnould on Insurance, 623-625. Court, the evidence is usually taken in depositions, under a commission. The mode of taking depositions, having been stated with sufficient particularity in a preceding volume,1 will not here be repeated. It should, however, be observed, that there is a clear distinction between depositions taken under a dedimus potestatem, and those taken de bene esse under the Judiciary Act of Congress.2 The provision made in that statute for taking depositions de bene esse, without the formality or delay of a commission, is restricted to the cases there enumerated, namely, when the witness resides more than one hundred miles from the place of trial, or is bound on a voyage to sea, or is about to go out of the United States, or out of the District and more than the above distance from the place, and before the time of trial, or is ancient or very infirm. But whenever a commission issues "to take depositions according to common usage, when it may be necessary to prevent a failure or delay of justice," whether the witness resides beyond the process of the Court or within it, the depositions are under no circumstances to be considered as taken de bene esse, but are absolute. The statute provision above mentioned does not apply to cases pending in the Supreme Court, but only to cases in the District and Circuit Courts. Depositions can be regularly taken for the Supreme Court only under a commission issued according to its own rules. Under the statute, it has also been held, that the circumstance that the witness was a seaman in the naval service of the United States, and liable to be ordered on a distant service, was not a sufficient cause for taking his deposition de bene esse; and therefore his deposition was rejected. But it was observed, that in such a case, there would seem to be a propriety in applying to the Court for its aid.5 1 Ante, Vol. 1, § 320–325. 2 U. S. Stat. 1789, ch. 20, 30; Stat. 1793, ch. 22, §6; Ante, Vol. I, $322. 3 Sergeant v. Biddle, 4 Wheat. 508. 4 The Argo, 2 Wheat. 287. 5 The Samuel, 1 Wheat. 9. § 434. Objections to the competency of a deponent should be made at the time of taking his deposition, when it is taken under the statute, in order that the party may have opportu nity to remove them, if possible. But if the ground of objection was not previously known, either actually or by constructive notice, the objection may be made at the hearing.1 And when the party, against whom a deposition is taken, expressly waives all objection to it, this general waiver must be understood as extending to the deposition only in the character in which it was taken, and not as imparting to it any new or different character, as an instrument of evidence. Thus, where a deposition is taken de bene esse, and the adverse party waives all objection to it, it is still only a deposition de bene esse, and does not, by the waiver, become a deposition in chief.2 § 435. The general rules for the conduct of commissioners, parties and counsel, in taking depositions, are substantially the same in Admiralty as in Equity. But from the peculiar character of the subjects of jurisdiction, and of the persons and employments of the parties and witnesses, and upon the constant necessity of resorting to foreign countries for proof, Courts of Admiralty are constrained, for the promotion of justice, to administer those rules of evidence, which are not prescribed by statutes, with less strictness than is observed in other tribunals. This is illustrated in its frequent resort to letters rogatory, instead of a commission, especially where the foreign government refuses to suffer a commission to be executed within its jurisdiction, and deputes persons, appointed by itself, to take the depositions. In such cases, especially, it will suffice if the testimony sought is substantially obtained from the witness, as far as he is able to testify, though all the interrogatories are not formally answered. Indeed, it is said that wherever the business is taken out of the hands of the Court, the ends of justice seem to require a 1 U. States v. Hair Pencils, 1 Paine, 400. departure, in some degree, from the ordinary rules of evidence; though the extent to which this departure should go has not yet been precisely determined.1 So, where an order of the Court has been made, pursuant to an agreement of the parties, that the commission for taking testimony should be closed within a limited time; the Court, nevertheless, in its discretion, will enlarge the time, upon the proof of newly discovered and material evidence, coming to the knowledge of the party after the execution of the commission.2 § 436. In regard to affidavits, it may here be observed, that in Instance causes they are seldom of use, except in some cases of salvage,3 and in matters relating to the progress of the cause. But whenever they are taken, the person preparing the affidavit ought not to make out the statements of fact in language contrary to the natural tone in which the witness or party, if unassisted, would express himself; but should state all the facts and circumstances as the affiant would himself state them if examined in Court. As to their admissibility in chief, it has been held, that the Court will not receive, on the mere affidavit of the defendant, facts which would be a bar to the action; nor will it, upon mere voluntary affidavits, decide upon charges strongly partaking of a criminal nature. Neither is an affidavit admissible in explanation of depositions and supplying the deficiencies therein; it being either a contradiction or a repetition of the depositions. Nor will the Court receive the affidavit of a party in explanation and justification of his 1 Nelson v. U. States, 1 Pet. C. C. R. 237. 2 The Ruby, 5 Mason, 451. 3 In the High Court of Admiralty in England, when cases of salvage are brought upon affidavits, the practice, it seems, is for the salvors examined, first to release their interest. Dunl. Adm. Pr. 265, cites The Countess of Dover, 2 Hagg. 149, 152, n. See supra, § 412. 4 The Towan, 8 Jur. 222. 6 The Apollo, 1 Hagg. 315. 7 The Georgiana, 1 Dods. 399. |