DEPOSITION. The testimony of a wit ness 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.
2. Depositions were not formerly admitted in common-law courts, and were afterwards admitted from necessity, where the oral tes timony of a witness could not be obtained. But in courts of chancery this is generally the only testimony which is taken. Adams, Equity, 363. In some of the United States, however, as, for instance, in Connecticut, both oral testimony and depositions are used, the same as in courts of common law. 2 Rev. Swift, Dig. 277.
3. In criminal cases, in the United States, depositions cannot be used without the con sent of the defendant. 3 Greenleaf, Ev. 11; 15 Miss. 475 ; 4 Ga. 335.
The constitution of the United States pro iides that in all criminal .prosecutions "the accused shall enjoy the right to be confronted with the witnesses against him." Amend. of Const. art. 6. This principle is recognized in the constitutions or statutes of most of the states of the Union. 3 Greenleaf, Ev. 11 ; Const. of Ohio, art. 1, 10 ; Const. of Conn. art. 1, 9, etc.
In some of the states, provision is made for the taking of depositions by the accused. Conn. Comp. Stat. art. 6, 162; 3 Greenleaf, Ev. 11.
4. Provision has been made for taking de positions to be used in civil cases, by an act of congress and by statute in most of the states.
The act of September 24, 1789, s. 30, 1 Story, U. S. Laws, 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 ftem 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 belle eeee, 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 super or 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 in terested in the event of the cause : provided that a notification from the magistrate before whom the deposition is to he 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, allow ing time for their attendance after being notified, not less than at the rate of one day, Sundays ex clusive, 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 de positions of persons circumstanced as aforesaid shall be taken before a claim be put in, the like notification as aforesaid shall be given to the per son having the agency or possession of the pro perty 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 ex amined and cautioned, and sworn or affirmed to testify the whole truth, and shall subscribe the tes timony by him or her given, after the acme shall be reduced to writing, which shall be d die only by the magistrate taking the deposition, or by the de ponent in his presence. And the de•asitions 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 magis trate sealed up and directed to such court, and re main under his seal until opened in court. And
any person may he 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 he 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 dis tance than as aforesaid from the piece 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 dedimue poteetatem, to take deposi tions 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 peqetuam rei memo riam, which, if they relate to matters that may be bognizable in any court of the United States, a circuit court, on application thereto made as a court of equity, may, according to the usages is chancery, direct to be taken. Brightly, Dig. 264.
In any cause before a court of the United States, it shall be lawful for such court, in its discretion, to admit in evidence any deposition taken in per.. petuam rei memoriam, which would be so admissible in a court of the state wherein such cause is pend ing, according to the laws thereof. Act of Feb. 20, 1812; Brightly, Dig. U.11111. Laws, 264.
The act of January 1827, 3 Story, U. S. Laws, 2040, authorizes the clerk of any court of the United States within which a witness resides, or where he is found, to issue a aubpcena 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 dneee teem, and enforce obedience by punishment as for a con tempt. Brightly, Dig. U. S. Laws, 264.
5. Some of the statutes of the several states provide that courts may issue commis sions to take depositions ; others, that the parties may take them by giving notice of the time and place of taking the deposition to the opposite party. The privilege of taking them is generally limited to cases where the witness lives out of the state or at a distance from the court, or where he is sick, aged, about to leave the state, or where, from some other cause, it would be impossible or very inconvenient for him to attend in person. If the deposition is not taken according to the requirements of the statute authorizing it, it will, on objection being made by the op posite party, be rejected.
In Ecclesiastical Law. The act of de priving a cleigyman, by a competent tri bunal, of his clerical orders, to punish him for some offence and to prevent his acting in future in his clerical character. Ayliffc, Pa rerg. 206.