35 F. 822 | D.S.C. | 1888
A deposition de bene esse after due notice was taken in this case before Robert R. Shellaberger, Esq., a notary public, in Washington, D. C. The witness examined was Williapr E. Earle, Esq., an attorney on this record, for A. Blythe, assignee, resident in Washington. At his examination William M. Thomas, Esq., who is also an attorney on the record, was present. The package containing the deposition was sent by mail to the clerk of this court. The cause was under reference to a special master. An order of court was obtained, and the deposition
It appears that the testimony in chief of Mr. Earle is a continuous narrative, taken down on a type-writer, numbering 13 pages of law cap At the end of it, there appears in manuscript, in the hand, apparently, of Mr. Bhellabcrger, the notary public, eight objections marie by Mr. Thomas to the testimony of Mr. Earle. The first objection goes to the whole testimony as irrelevant, not responsive, and not being the best evidence. The other objections are to certain specified parts of the testimony. No objection was made either as to the form of the testimony, or to the manner in which it was submitted and presented. Then follows the cross-examination of Mr. Earle by Mr. Thomas, and his examination in reply, all in manuscript, in the handwriting, apparently, of Mr. Shellaberger. The first objection is to the testimony taken on the typewriter. It is not in the handwriting of the notary, nor of the witness, as is required by section 864, Rev. St. There can be no question that depositions de bene esse, being in derogation of the common law, and having their sanction solely in the statute, must follow all the statutory requirements, or in general they Mill bo excluded. Bell v. Morrison, 1 Pet. 351; Cook v. Burnley, 11 Wall. 659. When, however, the party taking the deposition has given notice to the other party, who attends, and cross-examines the witnesses, all irregularities attending the taking of the deposition, or occurring during the examination of the witness, not objected to at the time, are deemed to be waived. Shutte v. Thompson, 35 Wall. 351; Dinsmore v. Maroney. 4 Blatchf. 416, 17 Myers Fed. Dec. 636. In this case Mr. Thomas himself was present, saw the statement of Mr. Earle submitted, taken on the typo-writer, examined it, made objections to it in whole and as to parts, but interposed no objection whatever to the fact that he submitted it in narrative and continuous form, prepared and taken on a type-writer. This must be held to be a waiver of this irregularity.
The second objection is to the form of the certificate of the magistrate taking the deposition. The certificate uses this language: “* * * That the foregoing deposition was by the said Earle given in my presence, and, when reduced to writing as so given, was by said Earle subscribed and sworn to in my presence.” The section 864, Rev. St., requires that the “testimony lie reduced to writing by the magistrate taking the deposition, or by himself, [the witness,] in the magistrate’s presence, and by no other person.” In this case the part of the testimony in manuscript appears to be in handwriting of the magistrate. But there is no certificate of this. Were it certified we might overlook this objection under the cases of Van Ness v. Heineke, 2 Cranch, C. C. 259; Vasse v. Smith, Id. 31; Centre v. Keene, Id. 198, quoted in Desty, Fed. Proc. 459. The objection is fatal. The law requires a certificate that the act was complied with. Harris v. Wall, 7 How. 693. Inasmuch as the certificate was made after Mr. Thomas had attended, and its contents could not have been known until the deposition was opened, he cannot be held to have waived this defect. Nor is the defect purely formal. The stat*
