198
testimony of a witness or witnesses, at any place within the UnitedStates , or the territories thereof, it shall be lawful for the clerk of anycourt of the United States , for the district or territory within whichsuch place may be, and he is hereby enjoined and required, upon
to make the depositions evidence, although the commissioners named by the party making the objec-tion, after proceeding some length in the examination of the witnesses, withdrew. Muns v. Dupont,2 Wash. C. C. R. 563.
The provision of the judiciary act of 1789, ch. 20, sec. 30, as to taking depositions, de bene esse,does not apply to cases pending in the Supreme Court of the United States , but only to cases in thedistrict and circuit courts. Testimony, by depositions, can only be regularly taken for the SupremeCourt , under a commission issuing according to the rules of the court. The Argo, 2 Wheat. 287; 4Cond. Rep. 119.
Depositions taken according to the proviso in the 13th section of the judiciary act of 1789, ch. 20,under a dedimus potestatem,” “ according to common usage, where it may be necessary to preventa failure or delay of justice,” are,under no circumstances, to be considered as taken de bene esse,whether the witness reside beyond the process of the court, or within it: the provision of the act re-lative to depositions, de bene esse, being confined to those taken under the enacting part of the sec-tion. Sergeant’s Lessee v. Biddle et al. 4 Wheat. 508; 4 Cond. Rep. 522.
A commission was issued in the name of Richard M. Meade, the name of the party being Richard W.Meade. This is a clerical error in making out the commission, and does not affect the execution ofthe commission. Keene v. Meade, 3 Peters, 1.
It is not known that there is any practice in the execution or return of a commission, requiring acertificate, in whose handwriting the depositions returned with the commission were set down. Allthat the commission requires, is, that the commissioners, having reduced the depositions taken by themto writing, should send them with the commission, under their hands and seals, to the judges of thecourt out of which the commission issued. But it is immaterial in whose handwriting the depositionsare ; and it cannot be required that they should certify any immaterial fact. Ibid. 8.
A certificate by the commissioners, that A. B., whom they were going to employ as a clerk, had beensworn, admits of no other reasonable interpretation than that A. B. was the person appointed by themas clerk. Ibid. 9.
It is not necessary to return with the commission the form of the oath administered by the commis-sioners to the witnesses. When the commissioners certify the witnesses were sworn, and the interro-gatories annexed to the commission were all put to them, it is presumed that they were sworn and ex-amined as to all their knowledge of the facts. Ibid. 10.
The plaintiffs issued a commission to take testimony abroad, and the defendant joined in the same,by filing cross-interrogatories, but the plaintiffs afterwards found a witness to prove the facts theydesired to establish by the commission; and they abandoned it. The court said a trial under thosecircumstances, would be a surprise on the defendant. Le Roy v. The Delaware Ins. Co., 2 Wash. C.C. R. 223.
If the cross-interrogatories are not put to a witness examined under a commission to take testimony,the examination of the witness cannot be read on the trial. Gilpins v. Consequa, Peters’ C. C. R. 86.
It is no objection to a deposition taken under a commission to Holland, that it is in the English lan-guage, the commissioners before whom it was taken being Dutchmen, and not stating that they hadthe assistance of an interpreter. Ibid.
It is not an objection to the evidence taken under a commission, that the cross-interrogatories werenot put to each witness, immediately after he had answered the chief interrogatories, but were put tohim after all the chief interrogatories had been answered by all the witnesses. Ibid.
A commission is not defectively executed, because the commissioners and their clerk, were not sworn.Ibid.
Those who execute a commission are appointed by the court, and although they may be nominatedby the parties, they are not their agents. Ibid.
If all the interrogatories, which accompany a commission, are substantially, although not severallyanswered, it is sufficient; and this principle applies as well to the answers given to the interrogato-ries annexed to letters rogatory, as to answers under a commission. Nelson v. The United States ,Peters’ C. C. R. 235.
The circuit court of the United States will issue letters rogatory, for the purpose of obtaining thetestimony of witnesses, when the government of the place where the evidence is to be obtained willnot permit a commission to be executed. Ibid.
The testimony of a witness, taken under a commission, directed to five persons, or any one of them,cannot be read in evidence if another person than the commissioner, and who was not named in thecommission, assisted in taking the examinations of the witnesses. Willings v. Consequa, Peters’ C.C.R. 301.
A commission directed to A. to be executed in one county, cannot be executed by him in another.The commissioner ought to state when and where the commission was executed. He acts under aspecial authority. The depositions were rejected, being obnoxious to this principle. Bourdereau et al.v. Montgomery et al., 4 Wash. C. C. R. 186.
If the general interrogatory, under a commission, is not answered, it is a fatal objection to the wholedeposition ; all the interrogatories must be substantially answered. Dodge v. Israel, 4 Wash. C. C. R. 323.
Query , If it is not an objection to a deposition, that it was committed to writing by the witness beforehe was sworn; and whether exhibits, referred to in a deposition, ought not to be annexed by the commis-sioners to the deposition, or so designated by them as to leave no reasonable doubt of their identity. Ibid.
If reasonable notice of formal objections to the depositions taken under a commission, be not given,the court may be induced to set aside a verdict or nonsuit rendered in consequence of this objection,without costs. Ibid.
Depositions taken, under a commission, to another state, cannot be read, unless proof be given