CHAPTER XVII. EVIDENCE OBTAINED BY DEPOSITION OR COMMISSION. § 297. Legal Aspects of the Subject. a. The Term Defined. b. Distinguished from Affidavit. d. Frovisions of the New York Code. f. Statutory Formalities. h. Illinois Decisions Considered. i. Deposition in Another Cause. j. Objections to Depositions Considered. 298. Testimony of Witness Out of State, When Taken. b. Examination of Authorities. c. Statutory Regulations. 300. Motion to Suppress Deposition. 301. Letters Rogatory. a. Import of Phrase. b. Generally Superseded by Other Remedies. c. A Precedent Examined. § 297. Legal Aspects of the Subject.-Questions incessantly arise under the rules of evidence that suggest an extended reference to the topics indicated by the caption. Few trials of any magnitude are relieved from the necessity of introducing testimony taken either under a commission or deposition, and while the practice methods which regulate its issuance are foreign to the scope and nature of this present work, it is impossible to avoid some brief reference to them in any intelligent discussion of the evidentiary rules that inseparably accompany the topic. As an important factor in the law of evidence, depositions are entitled to more extended notice than they have yet received. a. The Term Defined.-Anderson's Law Dictionary states that "deposition" is sometimes synonymous with "affidavit" or "oath," but in its more technical and appropriate sense, is limited to the written testimony of a witness given in the course of a judicial proceeding, at law or in equity. State v. Dayton, 23 N. J. L. 54. "Deposition" is a generic expression, embracing written evidence verified by oath, and thus includes "affidavits;" but, in legal language, a deposition is evidence given by a witness under interrogatories, oral or written, and usually written down by an official person; while an affidavit is the mere voluntary act of the party making the oath, and is generally taken without the cognizance of him against whom it is to be used. Yet the terms may be convertible, as in the rules at law of the United States Supreme Court. Stimpson v. Brooks, 3 Blatchf. 456-457. Depositions are taken of witnesses out of the jurisdiction, of aged, infirm, sick, or going abroad, upon written interrogatories, the answers to be used as evidence in the event of their death or departure before trial, or of their inability to attend the trial. Testimony in equity, and much in admiralty and divorce, is thus taken, as is also testimony at preliminary examinations in criminal causes; but in the last case is not admissible at- trial except, perhaps, by consent of the accused. See Bl. Com. 383, 438. Where a party offers in evidence a deposition taken by his adversary, he thereby makes it his own in all respects as if taken by himself; but he is not compelled to read irrelevant portions when not responsive to the interrogatories. Fountain v. Ware, 56 Ala. 558. Where the deposition of a witness who does not reside in the county of a trial, or in an adjoining county, has been taken by one party, the fact that the other party has had the witness present, and has examined him during the trial, does not prevent the reading of the deposition if the witness be not present when it is offered, having been discharged by the party who procured his attendance. Shirts v. Irons, 37 Ind. 98. A party who has taken a deposition which the law does not require to be filed in court, is not obliged to produce it at the request of the other party, on trial, notwithstanding the opposite party appeared where it was taken and cross-examined the deponent, and though it has been filed with the clerk of the court by the party taking it. Wait v. Brewster, 31 Vt. 516. To entitle an exemplification of a commission and deposition to be read in evidence, there must be an accompanying certificate of a judge or other officer authorized to receive and open commissions. Oneida Mfg. Soc. v. Law. rence, 4 Cow. 440. A deposition taken before an actual justice of the peace is admissible in evidence, though he is not described as such. Commissioners of Berks County v. Ross, 3 Binn. 539. Whether a deposition taken within the State is or is not admissible, is merely a question of law. No discretionary power to admit or reject it is lodged with the court. The person before whom a deposition was taken in another State subscribed his name to it, annexing thereto the letters "J. P." This was accompanied by a certificate of the county clerk, properly authenticated, that such person was a justice of the peace. It was held that such deposition was admissible in evidence (Thompson v. Stewart, 3 Conn. 171); but depositions out of a State may be received at the discretion of the court. Cooper v. Brakeman, 33 Me. 376; George v. Nichols, 32 Me. 179. Testimony taken in another State on a joint and several commission may be read in evidence, though the defendant's commissioners did not attend. Pennock v. Freeman, 1 Watts, 401. Congress has not empowered the United States district and circuit courts to make rules touching the mode of taking testimony. Depositions taken under a state law in conflict with the provisions of the Act of Congress in relation thereto, are not admissible as evidence. Randall v. Venable, 17 Fed. Rep. 162. A deposition filed is the property of the court; if the testimony is material it should be used. Some courts hold that it is as competent for one party to read a deposition filed by the other party as to introduce a witness summoned in his behalf. Rucker v. Reid, 36 Kan. 470. As to rules of practice see 22 Cent. L. J. 581 (1886), cases. Taking before United States Commissioner, 1 Kan. L. J. 245, 249 (1885). b. Distinguished from Affidavit.-A deposition is distinguished from an affidavit, which is always an ex parte statement, drawn up in writing, without a formal interrogation, and signed and sworn by the party making it, although in affidavits the party making it is constantly called a deponent, and said to depose. Affidavits serve to verify allegations of fact not already matters of record, and thereby qualify them for judicial action; also to initiate remedies, giving to statements the impress of good faith and of probable cause. They are no part of the record in the case unless specially made so. Depositions were not formerly the ordinary incidents of common law courts, but were subsequently introduced on the ground of necessity, where the oral testimony of a witness could not be obtained. But in courts of chancery it was quite frequently the case that this was the only kind of testimony which was taken, as was the case in ecclesiastical courts. See Weeks, Deposition, § 3. The clause referring to affidavits is grounded upon the decision of Craig v. Smith, 100 U. S. 326, 25 L. ed. 577. In somewhat different phraseology a "deposition" may be defined to be the testimony of a witness reduced to writing, in due form of law, by virtue of a commission or other authority of a competent tribunal, or according to the provisions of some statute law, to be used on the trial of some question of fact in a court of justice or other judicial tribunal. Adams, Eq. 363; Bouv. Law Dict. title "Adverb." The only mode by which a deposition can be taken in a foreign country is under a commission. Stein v. Bowman, 38 U. S. 13 Pet. 209, 10 L. ed. 129. c. California Code Provisions.-The California Code provisions allow depositions once taken to be read in evidence, as the language of the following section (2034) indicates: "When a deposition has once been taken it may be read by either party in any stage of the same action or proceeding, or in any other action between the same parties, upon the same subject, and is then deemed the evidence of the party reading it. Depositions taken in another court between the same parties and in regard to the same subject matter, may be read in evidence upon parol proof of the existence of such former action. Ayers v. Chisum, (N. M.) 3 N. M. 52. So the deposition is admissible, notwithstanding the complaint has been amended subsequent to the taking thereof, provided the subject matter remains the same. Anthony v. Savage, 3 Utah, 277. Other sections of the same article (5) provide for the manner of taking the depositions, section 2032, for the procurement of proper witnesses, section 2036, and for the notice served upon the adverse party, indeed the entire chapter 3 is a carefully considered enactment, and affords the best possible exposition of the Code practice regulating the subject. d. Provisions of New York Code.--Similar in tenor and scope with those above outlined are the regulations imposed by the New York Code Civ. Proc. title 3, art. 1, § 870, etc., of that Act, make elaborate provision for depositions taken both within and without the State. Section 911 indicates the effect of the deposition as a matter of evidence, and is in the following phraseology: "A deposition taken and returned, as prescribed in this article, or an exemplified copy thereof, if the original is filed in another county, may, unless it is suppressed as prescribed in the last section, be read in evidence by either party. It has the same effect, and no other, as the oral testimony of the witness would have; and an objection to the competency or credibility of the witness, or to the relevancy or substantial competency of a question put to him, or of an answer given to him, may be made, as if the witness was then personally examined, and without being noted upon the deposition." e. Judicial Interpretation. The judicial interpretation of this Act has been of a uniform character, and has had a constant tendency to develop and expand the efficacy of the law, as a remedial measure in furtherance of evidentiary right. Under the general interrogatory, any pertinent answer is material not repeating what has already been said. Percival v. Hickey, 18 Johns. 257; McCarty v. Edwards, 24 How. Pr. 236. Further, a witness is required to state anything known to him material to the issue or to the benefit of the party putting the interrogatory; the witness may state a fact material to the issue, though it be detrimental to such party. Van Ness v. Bush, 14 Abb. Pr. 33, 22 How. Pr. 481. A motion at the trial to suppress the whole deposition, on the ground that some of the interrogatories and parts of the deposition are improper, should be denied. If any part of the deposition is competent, the objection should be confined to that which is not so; where pertinent evidence is given in answer to the general interrogatory, to which the attention of the opposing counsel was not called by the others, if he desire to cross-examine the witness as to such evidence he should apply to the court for such relief before the trial. Per Allen, J. It is not a ground for sup pressing the whole deposition on the trial. If any part of the evidence so given is incompetent or impertinent, such part may be excluded. Commercial Bank of Pennsylvania v. Union Bank, 11 N. Y. 203. Formal defects and irregularities in taking depositions not prejudicing substantial rights are disregarded. Semmens v. Walters, 55 Wis. 675. |