20 F. Cas. 1175 | E.D. Mich. | 1873
Being of opinion that the second objection (that the depositions were opened out of court) is well taken, it is unnecessary to consider the other two, and no opinion will be given as to them. The requirement of the act that depositions shall remain, etc., “until opened in court,” may, no doubt, be waived by a consent to their being opened out of court. But. in my opinion, such consent should in ail cases be evidenced by writing duly signed, and filed or indorsed upon the depositions — which does not appear to have been done in this case. On the contrary, it transpired at the hearing that no consent whatever, verbal or other-wise, was in fact given, so far as libellants were concerned, the indorsement by the clerk to that effect having been prematurely made, under the expectation or mistaken supposition that such consent would be, or had been given. This very case well illustrates the policy and necessity of the rule above suggested, that such consent should always be in writing, and on file, before depositions are allowed by the clerk to be opened out of court. The bare question, then, is presented as to the effect of the unauthorized opening of depositions out of court, upon their admissibility in evidence. This question, in view of the peremptory character of the statutory requirement, scarcely admits of discussion or doubt. Whether it does or not, however, is not an open question for this court, the supreme court, in the case cited by libellants’ counsel (Beale v. Thompson, 8 Cranch [12 U. S.] 70), having decided, in a
