thereon.

or value of fifty dollars,(a) shall be allowed to the circuit court next to be holden in the 3 March 1803. district where such final judgment or judgments, decree or decrees, may be rendered; (b) Appeals from dis and the circuit court or courts are hereby authorized and required to receive, hear and trict courts. determine such appeal; and from all final judgments or decrees rendered or to be From circuit rendered in any circuit court, or in any district court acting as a circuit court, in any or admiralty. courts, in equity cases of equity, of admiralty and maritime jurisdiction, and of prize or no prize, an ar peal, (c) where the matter in dispute, exclusive of costs, shall exceed the sum or value of two thousand dollars, shall be allowed to the supreme court of the United States; and upon such appeal, a transcript of the libel, bill, answer, depositions, (d) and all Proceedings other proceedings of what kind soever in the cause, shall be transmitted to the said supreme court; and no new evidence shall be received in the said court, on the hearing of such appeal, (e) except in admiralty and prize causes; and such appeals shall be subject to the same rules, regulations and restrictions as are prescribed in law in case of writs of error; (g) and the said supreme court shall be, and hereby is authorized and required to receive, hear and determine such appeals. And so much of the 19th and 22d sections of the act of congress, entitled "An act to establish the judicial courts of the United States," passed on the 24th day of September 1789, as comes within the purview of this act, shall be and the same is hereby repealed.

5 Stat. 393.

from the district

5 Stat. 658.

10. Writs of error shall lie to the supreme court from all judgments of a circuit court, 4 July 1840 3 3. in cases brought there by writs of error from the district court,(h) in like manner and under the same regulations, limitations and restrictions as are now provided by law for Error, in cases writs of error to judgments rendered upon suits originally brought in the circuit court. (i) courts. 11. Final judgments in any circuit court of the United States, (k) in any civil action 31 May 1844 1. brought by the United States, for the enforcement of the revenue laws of the United States,() or for the collection of the duties due, or alleged to be due, on merchandise Error in revenue imported therein, may be re-examined, and reversed or affirmed in the supreme court of the United States, upon writ of error, as in other cases, without regard to the sum or value in controversy in such action, at the instance of either party.

(a) No appeal lies by any party from a decree of the district court, unless on his part the matter in dispute exceeds the sum or value of $50. Shirley r. Titus, 1 Sumn. 447. In suits for assaults and batteries on the high seas, no appeal can be sustained unless there be an ad damnum laid in the libel exceeding $50. Jenks v Lewis, 3 Mas. 503. And where a libel claims $300 damages, and a decree is given for the libellant for $40, in which he acquiesces, the respondent cannot appeal. Greigg v. Reade, Crabbe, 64. See also United States v. McDowell, 4 Cr. 316. PostmasterGeneral v. Cross, 4 W. C. C. 326. Godfrey v. Gilmartin, Law's Jurisdiction, 178, note.

(b) See The Montgomery v. The Betsey, 1 Gall. 416. Norton v. Rich, 3 Mas. 443. United States v. Haynes, 2 McLean, 155.

(e) This act has no reference to actions at law, and authorizes appeals to the supreme court, only in equity and admiralty. The San Pedro, 2 Wh. 132. Parish v. Ellis, 16 Pet. 451. But having provided for the removal of such causes by appeal, they cannot now be removed by writ of error. The San Pedro, 2 Wh. 132. McCollum v. Eager, 2 How. 61.

(d) Since the passage of this act, all the evidence, in admiralty as well as in equity cases, goes up to the supreme court with the appeal, and it must accordingly be in writing. The schooner Boston. 1 Sumn. 328. If parol testimony was heard in the court below, it must be reduced to writing and appear on the record. Connr. Penn, 5 Wh. 424. A statement of facts is not sufficient. New Orleans v. United States, 5 Pet. 449. By act 26 February

cases.

1853, "in case of an appeal, copies of the proofs, and of such entries and papers on file as may be necessary on hearing of the appeal, may be certified up to the appellant court." See tit. "Fees," 9.

(e) This prohibits the receiving new evidence on an appeal in equity. Russell v. Southard, 12 How. 139.

(g) This adopts the rules, regulations and restrictions contained in the act of 1789, which respect the time within which a writ of error may be brought, and in what instances it shall operate as a supersedeas; the citation to the adverse party; the security to be given by the plaintiff in error for prosecuting his suit; and the restrictions upon the appellant court as to reversal in certain enumerated cases. All these are applicable to appeals under this act, and are to be substantially observed; except that where the appeal is prayed at the same term when the decree or sentence is made, a citation is not necessary. The San Pedro, 2 Wh. 152. Reily r. Lamar, 2 Cr. 344. Stafford v. Union Bank, 16 How. 135.

() Prior to this act, no writ of error would lie in such a case. United States v. Goodwin, 7 Cr. 106. United States v. Gordon, Ibid. 287. Sarchet v. United States, 12 Pet. 143. (i) See Mayberry r. Thompson, 5 How. 121.

(k) This does not extend to the territorial courts. United States v. Carr, 8 How. 9.

(1) The act 3 March 1845 3 10. (5 Stat. 736), relating to frauds on the revenue of the post office department, is such a law. United States v. Bromley, 12 How. 88.

I. GENERAL RULES.

1. Proof to be by oral testimony.

Evidence.

2. In equity, testimony may be taken by depositions.

II. MODE OF COMPELLING THE PRODUCTION OF EVIDENCE.

3. Parties may be required to produce books and papers. Effect of refusal.

4. Subpoenas to run into other districts.

III. DEPOSITIONS.

6. When depositions de bene esse may be taken. Before whom, Notice. In admiralty causes. Mode of taking down testimony. To be sealed up and directed to the court. Witnesses may be ecmpelled to testify. Depositions to be taken in admiralty causes. To be used on appeal. When depositions may be read. Courts may issue dedimus potestatem as usual. And perpetuate testimony.

6. When depositions in perpetuam rei memoriam may be read. 7. Clerks to issue subpoenas to witnesses named in commission. Penalty for disobedience. Compensation of witnesses. Not to be required to go out of their county, or more than forty miles. 8. Judges to issue subpoenas duces tecum. On affidavit of party. Penalty for disobedience. Commissioner to copy papers produced. Fees of witnesses to be tendered.

IV. RECORDS.

9. How legislative acts authenticated. And judicial records. Effect thereof.

10. How other public records authenticated. Effect thereof. 11. To apply to the territories, &c.

12. How certain foreign records authenticated.

V. OFFICE COPIES.

13. Transcripts of treasury balances to be evidence. Copies bonds, &c. When originals to be produced. 14. Copies of papers relating to land titles. 15. Extracts from the journals.

16. Solicitor of the treasury to certify copies of papers in his office.

17. Copies of papers in the several departments.
VI. WITNESSES.

18. Witnesses in criminal cases may be required to give recognisance with surety. Their compensation.

19. Warrants may be issued against witnesses for the govern ment, to compel them to find sureties. In default, may be committed.

20. Defendants to have process for their witnesses, in certain cases, at the cost of the government.

21. Compensation of witnesses, whilst under commitment.

24 Sept. 1739
1 Stat. 88.

Mode of proof.

30.

20 April 18022 25. 2 Stat. 166.

In equity, testi

mony may be

taken by deposi

tius.

21 Sept. 1789 1 Stat. 82.

15.

Parties may be required to produce books, &c.

I. GENERAL RULES.

1. The mode of proof by oral testimony and examination of witnesses in open court, shall be the same in all the courts of the United States, as well in the trial of causes in equity (a) and of admiralty and maritime jurisdiction, as of actions at common law.

2. In all suits in equity it shall be in the discretion of the court upon the request of either party, to order the testimony of the witnesses therein to be taken by depositions; which depositions shall be taken in conformity to the regulations prescribed by law for the courts of the highest original jurisdiction in equity, in cases of a similar nature, in that state in which the court of the United States may be holden: Provided however, That nothing herein contained shall extend to the circuit courts which may be holden in those states, in which testimony in chancery is not taken by deposition.

II. MODE OF COMPELLING THE PRODUCTION OF EVIDENCE.

3. All the said courts of the United States shall have power in the trial of actions at law, (b) on motion, (c) and due notice thereof being given, (d) to require the parties to produce books or writings in their possession or power, which contain evidence pertinent to the issue, (e) in cases and under circumstances where they might be, compelled to proEffect of refusal. duce the same by the ordinary rules of proceeding in chancery ;(g) and if a plaintiff shall fail to comply with such order,(h) to produce books or writings, it shall be lawful for the courts respectively, on motion, to give the like judgment for the defendant as in cases of nonsuit;(1) and if a defendant shall fail to comply with such order, to produce books or writings, it shall be lawful for the courts respectively, on motion as aforesaid, to give judgment against him or her by default.(k)

2 March 1793 6. 1 Stat. 335.

4. Subpoenas for witnesses who may be required to attend a court of the United States, in any district thereof, may run into any other district: Provided, That in civil causes, Subpoenas to run the witnesses living out of the district in which the court is holden, do not live at a greater distance than one hundred miles from the place of holding the same.(7)

into other dis

tricts, &c.

24 Sept. 1789 30. 1 Stat. 88.

When deposi

tions de bene esse may be taken.

III. DEPOSITIONS.

5. And when the testimony of any person shall be necessary, in any civil cause depending in any district, in any court of the United States, (m) who shall live at a greater distance from the place of trial than one hundred miles, (n) or is bound on a voyage to sea, or is about to go out of the United States, or out of such district, and to a greater distance from the place of trial than as aforesaid, before the time of trial, (o) or is ancient or very infirm, the deposition of such person may (p) be taken de bene esse, (q) before any justice or judge of any of the courts of the United States, (r) or before any chancellor, (a) This gives to the parties in equity a right to examine and cross-examine the witnesses ore tenus, which is not taken away either by the act of 1802, (infra, 2) or by the 67th rule in equity, or in any other manner. Sickles v. Gloucester Co., 13 Leg. Int. 292.

Before whom.

(b) A proceeding in rem to enforce a forfeiture is not within the at. United States v. Twenty-eight Packages, Gilp. 306. And see Morgan v. Watson, 2 Whart. 10.

(c) An order to produce may be applied for before trial, upon notice. Iasigi v. Brown, 1 Curt. C. C. 401.

(d) If the notice be served on an attorney, whose client lives at a great distance, the court will postpone the trial till full opportanity has been afforded to him to communicate with his client. Gayger's Lessee v. Geyger, 2 Dall. 332. The notice must state, that on a failure to produce, the court will be moved to award a nonsuit or judgment, as the case may be. Bas v. Steele, 3 W. C. C. 381.

(e) If deeds are on record, the court will not grant a rule on the party in whose possession the originals are, to produce them, unless a special reason be assigned. Geyger's Lessee v. Goyger, 2 Dall. 332.

(g) A prima facie case of the existence of the paper, and its materiality, must be made out, and the court will then pass an order nisi, leaving the opposite party to produce, or show cause at the trial, where alone the materiality can be decided. Jasigi v. Brown, 1 Curt. C. C. 401. Dunham v. Riley, 4 W. C. C. 126. Bas v. Steele, 3 Ibid. 351. An ex parte affidavit is sufficient on a motion for an order to produce. United States v. Twenty-eight Packages, Gilp. 306. A party who receives notice to produce papers at the trial, cannot be called upon to do so, until the trial has commenced. Hylton v. Brown, 1 W. C. C. 298.

(h) On the trial, the party who has obtained the order is not required, in the first place, to offer proof that the opposite party is in possession of the document called for; the party called upon must discharge himself of the consequences of not producing it, by athidavit, or other proof, that he has it not in his power to produce it. Hylton v. Brown, 1 W. C. C. 298. And this may be met by contrary proof according to the rules of equity. Bas v. Steele, 3 Ibid. 381.

(i) See Iasigi v. Brown, 1 Curt. C. C. 401.

(1) A paper produced on notice of the opposite party, must be proved by him who offers it, in like manner as if he had himself produced it; unless the person producing it be a party to the instrument, or claim a beneficial interest under it. Rhoades . Selin, 4 W. C. C. 715. Hylton v. Brown, 1 Ibid. 343. Nor does it become evidence for the party producing it, if the party who gave the notice choose to waive the reading of it, which he has a right to do. Blight v. Ashley, Pet. C. C. 15, 22.

(4) Notwithstanding this act, the issuing of an attachment to

compel the personal attendance of a witness, residing in another district. is a matter in the discretion of the court. And where it would operate oppressively on the witness, and he shows no disposition to treat the process with contempt, the court will not compel his attendance. Ex parte Beebees, 2 Wall. Jr. 127. See Henry's Executors v. Ricketts, 1 Cr. C. C. 580. If a witness residing at a greater distance be subpoenaed and attend the trial, mileage will not be allowed in the costs for more than 100 miles travel in serving the subpoenas. Parker v. Bigler, 14 Leg. Int. 180.

(m) This only applies to cases in the district and circuit courts; it does not include the supreme court. The Argo, 2 Wh. 287. Nor can depositions taken under this act, be read in evidence, in equity suits, in the circuit court for the District of Columbia. Walker e. Parker, 5 Cr. C. C. 633,

Allen v.

(2) Whether in or out of the district. Patapsco Insurance Co. . Southgate, 5 Pet. 604. Russell r. Ashley, Hemp. 546. Blunt, 2 W. & M. 136. The person whose deposition is taken must reside more than 100 miles from the place of holding the court. Curtis v. Central Railway, 6 McLean, 401.

(2) That the deponent is a seaman, ou board a gunboat, in the harbor of Newport, and liable to be ordered to some other place, and not to be able to attend the trial," is not legal cause for taking his deposition de bene esse. The Samuel, 1 Wh. 9. See Harris . Wall, 7 How, 704.

(p) The act does not peremptorily ordain, that the testimony of witnesses living more than 100 miles from the place of trial, should be taken by deposition; it only permits such a course; and if such witnesses be present in court at the trial, and give their testimony orally, the full costs of their travel and attendance should be allowed in the costs. Prouty v. Draper, 2 Story, 199, (7) A deposition de bene esse may be taken without a rule. Bauert v. Day, 3 W. C. C. 243. It cannot be taken during the session of the court, at which the cause is to be tried, unless by its order, or consent of parties. Allen v. Blunt, 2 W. & M. 122. Nor is a notice of the taking of such deposition good, if served oL counsel, who could not attend, without being absent at the com mencement of the court. Bell v. Nimmon, 4 McLean, 532. Thə caption of such deposition must name all the parties in the suit. Peyton v. Veitch, 2 Cr. C. C. 123. If the names of any of the parties do not appear in the caption, or some part of the deposi tion, it is a fatal objection to it. Waskern v. Diamond, Hemp. 701 A mistake, however, in the name of the plaintiff or defendant aforesaid. referring to him as plaintiff or defendant, the name being truly stated in the title, is no ground for rejecting the deposition. Voce v. Lawrence, 4 McLean, 203. And where, from the facts, there can be no uncertainty as to the case, the deposi tion should be admitted. Buckingham v. Burgess, 3 Ibid. 368. Merrill v. Dawson, Hemp. 563.

(r) Or any commissioner appointed by them, by act 1 March 1817.

Justice or judge of a supreme or superior court, mayor or chief magistrate of a city, or 24 Sept. 1789 judge of a county court or court of common pleas of any of the United States, (a) not being of counsel or attorney to either of the parties, (b) or interested in the event of the cause; Provided, That a notification (e) from the magistrate before whom the deposition is Notice. to be taken, (d) to the adverse party, to be present at the taking of the same, and to put interrogatories, if he think fit, (e) be first made out and served on the adverse party or his attorney, (g) as either may be nearest, if either is within one hundred miles of the place of such caption,(h) allowing time for their attendance after notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles travel. And in causes In admiralty of admiralty and maritime jurisdiction, or other cases of seizure, when a libel shall be causes. filed, in which an adverse party is not named, and depositions of persons circumstanced as aforesaid shall be taken before a claim be put in, the like notification as aforesaid, shall be given to the person having the agency or possession of the property libelled, at the time of the capture or seizure of the same, if known to the libellant. And every person Mode of taking deposing as aforesaid, shall be carefully examined and cautioned, (i) and sworn or affirmed to testify the whole truth.(k) and shall subscribe the testimony by him or her given, after the same shall be redu cu to writing,(7) which shall be done only by the magistrate taking To be sealed up the deposition by the deponent in his presence.(m) And the depositions so taken and directed to shall be retained by such magistrate, until he deliver the same with his own hand, into the court for which they are taken, or shall, together with a certificate of the reasons as aforesaid of their being taken, () and of the notice, if any, given to the adverse party,(0) be by him, the said magistrate, sealed up and directed to such court, (p) and remain under his seal until opened in court.(g) And any person may be compelled to appear and Witnesses may depose as aforesaid, in the same manner (r) as to appear and testify in court.(s) And in the trial of any cause of admiralty or maritime jurisdiction in a district court, the decree in which may be appealed from, if either party shall suggest to and satisfy the court,

3 Stat. 350. Or the clerks of the circuit and district courts, by act 26 February 1855. 10 Stat. 163. See tit.Fees," 9. Or notaries public, by act 29 July 1854. 10 Stat. 315. See tit. "Notaries Public." 4.

(a) The authority of the magistrate need not be proved, other wise than by his own certificate. Vasse v. Smith, 2 Cr. C. C. 31. Ruggles . Bucknor. 1 Paine, 358. If, however, he omits so to certify, it seems that his authority may be proved by parol. Paul . Lowry, 2 Cr. C. C. 62%. And a deposition taken before a mayor, without a seal, may be received as prima facie evidence of his right to take it. Price r. Morris. 5 McLean, 4. Otherwise, if he usually certifies his official acts under seal. Paul v. Lowry, 2 Cr. C. C. 628. A judge of probate, in Mississippi, is "a judge of a county court," within the act. Fowler v. Merrill. 11 How. 375. S. C., Hemp. 563. And a judge, having a power to administer oaths, may administer them in any county in the state. Lawrence, 4 McLean, 203. But a deposition cannot be taken, under this act, before a judge of the city court of the city of Lexington, in Kentucky. Foreman r. Holmead, 5 Cr. C. C. 162. Nor before a county commissioner," in the state of Illinois. Garey . Union Bank of Georgetown, 3 Ibid. 91.

Voce v.

(b) It seems, that it is not necessary that the magistrate should certify that he was not of counsel to either party. Peyton v. Veitch. 2 Cr. C. C. 123.

(c) The nice should show on its face that the contingency has happened which confers jurisdiction on the magistrate, and gives a right to the party to have the deposition taken, so that the party on whom it is served, may be able to judge whether it is necessary or proper that he should attend. Harris . Wall, 7 How. 705. (d) The notice must be given by the magistrate; a notice given by the party is not suflicient. Young v. Davidson. 5 Cr. C. C. 515. (e) It is not necessary that the notice to the opposite party should require him " to put interrogatories if he should think fit." Bus Barir. Catalino, 2 Cr. C. C. 421,

(9) This requires personal service on the opposite party; and service, by leaving a copy at his place of abode, is not sufficient. Carrington v. Stimson, I Curt. C. C. 437. See contra, Merrill v. Dawson, Hemp. 563, where it was held, that notice to take depositions is sufficient, if served by delivering a copy to the party, or leaving such copy at his dwelling-house or usual place of abode, with a free white person, a member of, or resident in the family. And this case was affirmed by the supreme court. 11 How. 375, 893. Notice directed to the party himself may be served on his attorney. Barrell r. Limington, 4 Cr. C. C. 70.

(h) The distance that the plaintiff and his attorney resided from the place of taking the deposition, so as to supersede the necessity of giving notice, may be shown by the certificate of the magistrate. Merrill . Dawson, Hemp. 563. Or proved aliunde. Voce r. LaWrence. 4 McLean, 203–5. Travers v. Bell, 2 Cr. C. C. 160. deposition be taken in the absence of the party, he should take it again, if dissatisfied with the examination. Goodhue v. Lartlett, 5 McLean. 186.

If a

(1) It is no objection to a deposition, that the magistrate omitted to certify that he cautioned the witness. Brown v. Piatt, 2 Cr. C. C. 253. Moore v. Nelson, 3 McLean. 384. See Pendleton v. Forbes, 1 Cr. C. C. 507. Garrett e. Woodward, 2 Ibid. 190. Luther v. The Schooner Merritt Hunt, 1 Newb, 4.

(k) This must be certified by the magistrate. Reiner v. Haynes, Hemp. 689. Pendleton v. Forbes, 1 Cr. C. C. 507. Garrett v. Woodward, 2 Ibid. 190.

(7) It is not properly a deposition unless signed by the depoVoce v. Lawrence, 4 McLeau, 203 But it is not essential

nent.

down testimony

the court.

be compelled to testify.

that the magistrate should certify that he signed it in his pre-
sence. Ibid. Centre e. Keene, 2 Cr. C. C. 198.
(m) It must be reduced to writing by the magistrate, or by the
deponent in the presence of the magistrate. Edmondson e. Ear-
rell, 2 Cr. C. C. 228. Wilkinson v. Yale, 6 McLean, 18. No other
person is competent to perform that duty. Marstin v. McRea,
Hemp. 688. The magistrate cannot depute a person to write it.
Rainer v. Haynes, Ibid. 689. If the magistrate reduces the testi-
mony to writing, he need not state that it was written in the pre-
sence of the witness, but if reduced to writing by the withe s
himself, it must be done in the presence of the magistrate. Vasse
e. Smith, 2 Cr. C C. 31. A deposition reduced to writing by the
witness himself, is inadmissible, if the certificate does not clearly
show that it was done in the magistrate's presence. Bell r. Mor-
rison, 1 Pet. 351. And a certificate that it was reduced to writing
in his presence, without stating by whom, is not sufficient.
United States e. Smith, 4 Day. 126.

(a) The authority or jurisdiction conferred on the magistrate
by this act. is special, and confined within certain limits or condi-
tions; and the facts calling for the exercise of it, should appear
upen the face of the instrument, and not be left to parol proof.
Harris v. Wail, 7 How. 705. He must certify all the facts neces
sary to make it evidence under the statute. Jones r. Knowles, 1
Cr. C. C. 523. Jones r. Neale, Martin, (N. C.) 1. And such cer
tificate is good evidence of the facts stated therein, so as to entitle
the deposition to be read to the jury. if all the necessary facts are
there sufficiently disclosed. Belle. Morrison. 1 Pet. 356. For a
very carefully prepared form of certificate, see Hemp. 690-1. And
see Patapsco Ins. Co. v. Southgate, 5. Fet. 104.
3 McLean, 384. Voce v. Lawrence, 4 Ibid. 203.
son, Hemp. 563. Rainer r. Haynes, Ibid. 689.
Cr. C. C. 31. Garrett e. Woodward. Ibid. 190. Thorp v. Simmons,
Ibid. 195. Centre v. Keene. Ibid, 198. Edmondson e. Barrell,
Ibid. 228. Woodward v. Hall, Ibid. 235. Brown e. Piatt, Ibid.
253. Bussard v. Catalino. Ibid. 421. The certificate may be con
troverted by parol proof, especially in regard to the facts stated,
of which the magistrate is not supposed to possess official know-
ledge. Dick v. Runnells, 5 How. 9.

(6) Harris e. Wall, 7 How. 704.

Moore r. Neilson,
Merrill. Paw-
Vasse v. Smith, 2

(p) A deposition not so put up and directed will be rejected. Jones v. Neale, Martin, (N. C.) 81-2. The law did not intend that either party should have possession of the deposition, until it should be published by the special or general order of the court. Shankwiker v. Reading, 4 McLean, 240. But it is no valid objection, that the envelope was not directed to "the court," if it was directed to "the judges" of the court. Thorp v. Orr, 2 Cr C. C. 335.

(7) It is a fatal objection that the deposition was opened out of court; although opened by the clerk through a mistake. Beale v. Thompson, 8 Cr. 70. Or by one of the officers of the govern ment before it came into the hands of the clerk. United States 7. Price's Administrator. 2 W. C. C. 356.

(r) See Conkling's Treatise, 3d ed. 414. Law's Jurisdiction, 47 note.

(8) Objections to the competency of the witness should be made at the time of taking the deposition, if the party attend, and the objections are known to him. in order that they may be romoved; otherwise, he will be presumed to have intended to waive them But the objection may be made at the time of reading the depo sition. if the facts constituting the objection were not known to the party when it was taken. United States r. One Case of Hair Pencils. 1 Paine, 400. See The Themas and Henry, 1 Brock. 567.

ralty causes. To be used on appeal.

When depositions may be read.

24 Sept. 1789. that probably it will not be in his power to produce the witnesses there testifying before Depositions to be the circuit court, should an appeal be had, and shall move that their testimony be taken taken in admi- down in writing, it shall be so done by the clerk of the court. And if an appeal be had, such testimony may be used on the trial of the same, if it shall appear to the satisfaction of the court which shall try the appeal, that the witnesses are then dead or gone out of the United States, or to a greater distance than as aforesaid from the place where the court is sitting, or that by reason of age, sickness, bodily infirmity or imprisonment, they are unable to travel and appear at court, but not otherwise. (a) And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause. (b) Provided, That nothing herein shall be construed to prevent any court of the United States from granting a dedimus potestatem to take depositions, according to common usage, when it may be necessary to prevent a failure or delay of justice, which power And perpetuate they shall severally possess; (c) nor to extend to depositions taken in perpetuam rei memoriam, which, if they relate to matters that may be cognisable in any court of the United States, a circuit court, on application thereto made as a court of equity, may, according to the usages in chancery, direct to be taken.

Courts may issue dedimus potesta

tem as usual.

testimony.

20 Feb. 1812 3 3. 2 Stat. 682. Depositions in perpetuam rei me

moriam.

24 Jan. 18271. 4 Stat. 197.

Clerks to issue subpoenas to wit⚫ commission.

6. In any cause before a court of the United States, it shall be lawful for such court, in its discretion, to admit in evidence any deposition taken in perpetuam rei memoriam, which would be so admissible in a court of the state wherein such cause is pending, according to the laws thereof.

7. Whenever a commission shall be issued, by any court of the United States, for taking the testimony of a witness or witnesses, at any place within the United States, or the territories thereof, it shall be lawful for the clerk of any court of the United States, nesses named in for the district or territory within which such place may be, and he is hereby enjoined and required, upon the application of either of the parties in the suit, cause, action or proceeding, in which such commission shall have been issued, his, her or their agent or agents, to issue a subpoena or subpoenas, for such witness or witnesses, residing or being within the said district or territory, as shall be named in the said commission, commanding such witness or witnesses to appear and testify before the commissioner or commissioners, in such commission named, at a time and place in the subpoena to be stated; Penalty for dis- and if any witness, after being duly served with such subpoena, shall refuse or neglect to appear, or after appearing, shall refuse to testify, (not being privileged from giving testimony), such refusal or neglect being proved to the satisfaction of any judge of the court, whose clerk shall have issued such subpoena or subpoenas, he may thereupon proceed to enforce obedience to the process, or to punish the disobedience, in like manner as any court of the United States may do, in case of disobedience to process of Compensation of subpoena ad testificandum, issued by such court; and the witness or witnesses, in such cases, shall be allowed the same compensation as is allowed to witnesses attending the courts of the United States: Provided, That no witness shall be required to attend at any place out of the county in which he may reside, nor more than forty miles from his place of residence, to give his or her deposition, under this law.

obedience.

witnesses.

Not to be required to go out

of their county, or more than 40

miles.

Ibid. ? 2.

Judges to issue

tecum.

8. Whenever either of the parties in such suit, cause, action or proceeding, shall apply to any judge of a court of the United States, in the district or territory of the sulipanas duces United States, in which the place for taking such testimony may be, for a subpœna duces tecum, commanding the witness, therein to be named, to appear and testify before the said commissioner or commissioners, at the time and place in the said subpoena to be stated, and also to bring or carry with him or her, and produce to such commissioner or commissioners, any paper, writing or written instrument, or book or other document supposed to be in the possession or power of such witness, such judge being satisfied, by the affidavit of the person applying, or otherwise, that there is reason to believe that such paper, writing, written instrument, book or other document, is in the possession or power of the witness, and that the same, if produced, would be competent and material evidence for the party applying therefor, may order the clerk of the court, of which he is a judge, to issue such subpœna duces tecum, accordingly; and if such witness, after

On affidavit of party.

(a) The Thomas and Henry. 1 Brock. 368. (b) Where a deposition taken de bene esse, is offered in evidence, the party who offers it, must prove that he has used due diligence to procure the attendance of the witness. Pettibone v. Derringer, 4 W. C. C. 215. The Samuel. 1 Wh. 16. If he resides within 100 miles of the place of trial, it must be shown that he has been served with a subpoena, and is unable to come; unless he is so old, and generally so infirm, that his attendance could not be expected: the age of 65 is not of itself sufficient to entitle it to be read. Banert v. Day, 3 W. C. C. 243. It is, however, no objection to reading the deposition of a witness, who lives in another state, more than 100 miles from the place of trial, that he had been in the city during the session of the court, the fact not being known to the party. Pettibone v. Derringer, 4 Ibid. 215. See Patapsco Ins. Co v. Southgate, 5 Pet. 604, 616. Harris v. Wall, 7 How. 704.

(c) In Walsh v. Rogers, 13 How. 286-7, the supreme court. adverting to the increased facilities of the present day compared with those existing at the passage of the act of 1789, for transmitting and returning commissions, expressed in the most pointed manner its disapprobation of the practice of taking depositions de bene esse, on account of its great liability to abuse; except for the purpose of mere formal proof, such as the signature or execution of an instrument of writing, or of some isolated fact, such as demand of a bill, or notice to an indorser. This provision, it is there said, should never be resorted to, unless in circumstances of absolute necessity, as in the excepted cases just mentioned. In reference to the execution of commissions, see Sergeant's Lessee v. Biddle, 4 Wh. 508. Nicholls v. White, 1 Cr. C. C. 58. Sutton r. Mandeville, Ibid. 115. Walker v. Parker, 5 Ibid. 639. And see the authorities collected in 4 Stat. 197 note.

being duly served with such subpœna duces tecum, shall fail to produce any such paper, 24 Jan. 1827. writing, written instrument, book or other document being in the possession or power penalty for disof such witness, and described in such subpoena duces tecum, before, and to such com- obedience. missioner or commissioners, at the time and place in such subpoena stated, such failure being proved to the satisfaction of the said judge, he may proceed to enforce obedience to the said process of subpœna duces tecum, or to punish the disobedience, in like manner as any court of the United States may do, in case of disobedience to a like process, issued by such court; and when any such paper, writing, written instrument, book or Commissioner to other document, shall be produced to such commissioner or commissioners, he or they papers proshall, at the cost of the party requiring the same, cause to be made a fair and correct copy thereof, or of so much thereof as shall be required by either of the parties: Provided, That no witness shall be deemed guilty of contempt for disobeying any subpoena Fees of witnesses directed to him by virtue of this act, unless his fees for going to, returning from, and one day's attendance at the place of examination, shall be paid or tendered to him, at the time of the service of the subpoena.

IV. RECORDS.

9. The acts of the legislatures of the several states shall be authenticated by having 26 May 1790 1. the seal of their respective states affixed thereto. (a) The records and judicial proceedings (b) of the courts of any state, (c) shall be proved or admitted in any other court within How legislative acts and judicial the United States, (d) by the attestation of the clerk, (e) and the seal of the court annexed, records authentiif there be a seal, (g) together with a certificate of the judge, chief justice, or presiding cated. magistrate, as the case may be, (h) that the said attestation is in due form. (i) And the said records and judicial proceedings, authenticated as aforesaid, shall have such faith and credit given to them in every court within the United States, as they have by law or Effect thereof. usage in the courts of the state from whence the said records are or shall be taken.(k)