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Bouvier's Law Dictionary, Revised 6th Edition (1856)

DEPOSITION, evidence. The testimony of a witness reduced to writing, in due
form of law, taken by virtue of a commission or other authority of a
competent tribunal.
2. Before it is taken, the witness ought to be sworn or affirmed to
declare the truth, the whole truth, and nothing but the truth. It should
properly be written by the commissioner appointed to take it, or by the
witness himself; 3 Penna. R. 41; or by one not interested in the matter in
dispute, who is properly authorized by the commissioner. 8 Watts, R. 406,
524. It ought to answer all the interrogatories, and be signed by the
witness, when he can write, and by the commissioner. When the witness cannot
write, it ought to be so stated, and he should make his mark or cross.
3. Depositions in criminal cases cannot be taken without the consent of
the defendant. Vide, generally, 1 Phil. Ev. 286; 1 Vern. 413, note; Ayl.
Pand. 206; 2 Supp. to Ves. jr. 309; 7 Vin. Ab. 553; 12 Vin. Ab. 107; Dane's
Ab. Index, h.t.; Com. Dig. Chancery, P 8, T 4, T 5; Com. Dig. Testmoigne, C
4.
4. The Act of September 24, 1789, s. 30, 1 Story's L. U. S. 64, directs
that when the testimony of any person shall be necessary in any civil cause
depending in any district, in any court of the United States, who shall live
at a greater distance from the place of trial than one hundred miles, 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, or is ancient, or very infirm, the
deposition of such person may be taken de bene esse, before any justice or
judge of any of the courts of the United States, or before any chancellor,
justice, or judge of a supreme or superior court, mayor, or chief magistrate
of a city, or judge of a county court or court of common pleas of any of the
United States, not being of counsel or attorney to either of the parties, or
interested in the event of the cause; provided that a notification from the
magistrate before whom the deposition is to be taken, to the adverse party,
to be present at the taking of the same, and to put interrogatories, if he
think fit, be first made out and served on the adverse party, or his
attorney, as either may be nearest, if either is within one hundred miles of
the place of such caption, allowing time for their attendance after being
notified, not less than at the rate of one day, Sundays exclusive, for every
twenty miles travel. And in causes of admiralty and maritime jurisdiction,
or other causes of seizure, when a libel shall be 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 deposing as aforesaid, shall be
carefully examined and cautioned, and sworn or affirmed to testify the whole
truth, and shall subscribe the testimony by him or her given, after the same
shall be reduced to writing, which shall be done only by the magistrate
taking the deposition, or by the deponent in his presence. And the
deposition so taken 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, be by
him, the said magistrate, sealed up and directed to such court, and remain
under his seal until opened in court. And any person may be compelled to
appear and depose as aforesaid, in the same manner as to appear and testify
in court. 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, that probably it
will not be in his power to produce the witnesses, there testifying, before
the circuit court, should an appeal be had, and shall move that their
testimony shall be taken 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 or, appear at
court, but not otherwise. 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. 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 they shall severally possess nor to extend to
depositions taken in perpetuam rei memoriam, which, if they relate to
matters that may be cognizable 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.
5. The Act of January 24, 1827, 3 Story's L. U. S. 2040, authorizes
the clerk of any court of the United States within which a witness resides
or where he is found, to issue a subpoena to compel the attendance of such
witness, and a neglect of the witness to attend may be punished by the court
whose clerk has issued the subpoena, as for a contempt. And when papers are
wanted by the parties litigant, the judge of the court within which they
are, may issue a subpoena duces tecum, and enforce obedience by punishment
as for a contempt. For the form and style of depositions, see Gresl. Eq. Ev.
77.


DEPOSITION, eccl. law. The act of depriving a clergyman, by a competent
tribunal, of his clerical orders, to punish him for some offence, and to
prevent his acting in future in his clerical character. Ayl. Par. 206.

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