Deposition

^ Sometimes is 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. ^ "Deposition" is a generic expression, embracing all 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 ofidcial person; while an affidavit is the mere voluntary act of the party making the oath, and is generally taken without the cognizance of hihi against whom it is to be used. Yet the terms may be convertible, as in the rules at law of the Supreme Court.* Depose. Originally, to give testimony under oath, to testify; in present usage, to give testimony which is officially written down for future use.

Deponent.

One who, being under oath, testifies in writing. A deponent is 'a witness who depones (deponif), i. e., places his hand upon the book of the Evangelists while he is being bound by the obligation of an oath. Depose, deponent, and deposition related, originally, then, to the mode in which the oath was administered, not to the testimony itself as oral or written.^ Depositions are taken of witnesses out of the jurisdiction, or aged, infirm, sick, or going abroa.d, 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 tiius 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 further Dedimus.

— The testimony of any witness may be taken in any civil cause depending in a district or circuit court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundi'ed miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in ' See Commercial Warehouse Co. v. Graber, 45 N. Y. 394 (1871); 31 Hun, 231; 18 Abb. N. Cas. 333-34 (1886), cases. " L. de-ponere, to put, place;

— to lay down or aside. » State V. Dayton, 33 N. J. L. 54 (1850), Green. C. J. * Stimpson v. Brooks, 3 Blatoh.

456-57 (1856), Betts, J. which the case is to be tried, or to a greater distance than one hundred miles from the place, of trial, before the time of trial, or When he is ancient or infirm.' Such deposition can only be read upon proof that the attendance of the witness upon the trial cannot be procured." Cases in equity are taken to the Supreme Coiu't from the circuit courts, and the district courts sitting as circuit courts, by appeal, and are heard upon the proofs sent up with the record. "The mode of proof," by section 862, Rev. St., " shall be according to the rules now or hereafter prescribed by the supreme court, except as herein specially provided." The circuit courts are not now by law required to permit the examination of witnesses orally in open court upon the bearing of cases in eqmty. But if such practice is adopted, the testimony must be taken down, or its substance stated in writing and made part of the record.' Formerly, in England, the mode of examlnii Lg witnesses in equity was by interrogatories in writing... At the December term, 1861, of the Supreme Court, a new practice was introduced. Kule 67 was so amended as to make oral examination the rule, if either party desires it, and examination by written interrogatories the exception.* Congress has not empowered the district and circuit courts to make niles 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 in evidence.' 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." See Inter-