Dick & Co. v. Runnels - 46 U.S. 7 (1847)


U.S. Supreme Court

Dick & Co. v. Runnels, 46 U.S. 5 How. 7 7 (1847)

Dick & Co. v. Runnels

46 U.S. (5 How.) 7

Syllabus

By the 30th section of the Judiciary Act of 1789, 1 Stat. 88, depositions may be taken in certain cases, and notice thereof must be served on the adverse party or his attorney, provided either of them is within one hundred miles of the place where such deposition is taken.

A certificate of the person before whom the deposition was taken, that neither the adverse party nor his attorney lived within one hundred miles of such place, and

Page 46 U. S. 8

that therefore no notice was made out, is sufficient. It is not necessary for him to state that they were not actually within one hundred miles. If they had been temporarily within that distance, and the certifying officer did not know it, the certificate would still have been good.

If either of the two facts, viz., that the party resided within one hundred miles or that he was temporarily within that distance and that the magistrate knew it, were established by parol proof, the certificate would then be irregular and void.

The only question involved was the construction of a part of the 30th section of the Judiciary Act of 1789, 1 Stat. 88, which part is as follows. After providing for taking the testimony of persons "who shall live at a greater distance from the place of trial than one hundred miles," the section proceeds thus:

"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 notified, not less than at the rate of one day, Sundays exclusive, for every twenty miles' travel."

On the trial of the cause, in June, 1838, the plaintiffs' counsel offered in evidence a deposition, attached to which was a certificate in these words, viz.:

"And I, the said Paul Bertus, recorder of the first municipality, and acting mayor of the City of New Orleans aforesaid, do certify, that the deposition of the said William Christy was taken as aforesaid, because he, the witness, lives at New Orleans aforesaid, a greater distance than one hundred miles from Jackson, the place of trial of the suit or matter of controversy aforesaid, and I caused no notification of the time and place of the taking of said deposition to be made out and served upon Harden D. Runnels, the adverse party, or his counsel, to be present at the taking of said deposition, and to put interrogatories, if he or they thought proper, because neither the said Hardin D. Runnels nor his counsel live within one hundred miles of the place of caption to this deposition, being the place where the same is taken, and I do further certify, that the deposition was taken down by the witness, and signed by him in my presence, after being duly sworn, and I do further certify, that I am not of counsel or attorney to either of the parties aforesaid, or interested in the event of the cause or controversy aforesaid."

"In testimony whereof I have hereunto set my hand and seal, the day and year first before written."

"[SEAL] [Signed] PAUL BERTUS"

"Recorder No. 1, Mayor pro tem"

Page 46 U. S. 9

And thereupon a motion was made by the defendant's counsel to exclude the deposition, on the ground

"that the commissioner taking said deposition did not certify, that neither the said defendant or his attorney was within one hundred miles of New Orleans, the place of taking the deposition, at the time of taking the same."

Upon which question the judges were opposed in opinion, which is ordered to be certified to the Supreme Court of the United States, which is done accordingly.



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