Passed at the second session, which was begun and held at the City ofWashington, in the District of Columbia , on Monday the fourth dayof December, 1826, and ended on the third day of March, 1827.
John Quincy Adams, President; J. C. Calhoun , Vice President of theUnited States and President of the Senate ; Nathaniel Macon,President of the Senate , pro tempore; J. W. Taylor, Speaker ofthe House of Representatives .
STATUTE II.
Chap. IV. — An Act to provide for taking evidence in the courts of the United Jan. 24, 1827.States in certain cases fd)
Be it enacted by the Senate and House of Representatives of the UnitedStates of America, in Congress assembled, That, whenever a commis-sion shall be issued, by any court of the United States , for taking the
Whenever acommissionshall be issued,
(a) The decisions of the courts of the United States upon the laws relating to commissioners to taketestimony have been:
Depositions taken under a commission issued at the instance of the defendant, may be read in evi-dence by the plaintiff, although the plaintiff had no notice of the time and place of takingthem. Yea-ton v. Fry, 5 Crunch, 335; 2 Cond. Rep. 273.
The court will not award a commission to take the testimony of absent witnesses until the commis-sioners are named. Van Stephorst v. The state of Maryland, 2 Dali. 401 ; 1 Cond. Rep. 2.
Under particular circumstances the court allowed a special commission, to take the depositions ofwitnesses, with instructions : 1. That the interrogatories should be filed in the court here by both par-ties previous to the issuing of the commission. 2. That the commissioners should be directed not toadmit any additional interrogatories. 3. That neither parties nor counsel should be allowed to appearbefore the commissioners. Cunningham v. Otis, 1 Gallis. C. C. R. 166.
Commissioners to take depositions of witnesses, act under a special authority derived from the court,which must be strictly pursued ; and, therefore, where a commission had issued to four commissionersjointly to take depositions, and it was executed and returned by three only, although both of the com-missioners nominated by the defendant, had acted ; yet he may object to the reading of the depositions,and the objections will be sustained. Armstrong v. Brown, 1 Wash. C. C. R. 34.
A commission to take testimony, which had issued in a case in which the United States was aparty, was set aside, because it had been opened by an officer of the government before it came into thehands of the clerk, and a new commission was ordered, to which the original papers, which had beenannexed to the first commission, were attached. The United States v. Price’s Adm’rs,2 Wash. C. C.R. 356.
A commission to take evidence in an enemy’s country, in a prize cause, is contrary to the establishedpractice in a prize court. The Diana, 2 Gallis. C. C. R. 93.
Each interrogatory, annexed to the commission, should be substantially answered, at least; and theomission, so to answer, is fatal to the whole testimony of the witness: although, in his answer to thegeneral interrogatory, the witness has said he knows nothing material to either party. Ketland i>. Bis-sett, 1 Wash. C. C. R. 144.
Where a commission to take evidence was executed in a foreign country, the government of which re-fused to let the commissioners act, considering it an assumption of the sovereign power, but the commis-sion was executed by a judge of the courtin the presence of the commissioners; the depositions were per-mitted to be read, as otherwise the course of justice mightbe impeded. In such a case the evidence mustbe fairly taken; all the evidence on each side must be put and answered. If, however, the interroga-tories have been substantially put and answered, it is sufficient. Winthrop v. The Union Ins. Co.,
2 Wash. C. C. R. 7.
It is no objection to the reading of a deposition, taken under a commission to a foreign country, thatthe same witness had been previously examined and cross-examined in the United States . Ibid.
A joint commission to take the depositions of witnesses, must be executed by all the commissioners,
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