Deposition

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. In some states it is applied to the testimony taken on a preliminary hearing, and reduced to writing by the committing magistrate.

In its generic sense, it embraces all written evidence verified by oath, and includes affidavits, but in legal language, a distinction is maintained between depositions and affidavits. 3 Blatchf. (U. S.) 456.

In its technical sense, it is confined to the written testimony of a witness given in a judicial proceeding. 53 Am. Dec. 270. In Ecclesiastical Law. The act of depriving a clergyman, by a competent tribunal, of his clerical orders, to punish him for some offense, and to prevent his acting in future in his clerical character. Ayliffe, Par. 206.

The testimony of a witness taken upon interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court or under a general law on the subject, and reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court. Lutcher v. U. S., 72 Fed. 972, 19 C. C. A. 259; Indianapolis Water Co. v. American Strawboard Co. (C. Ct) 65 Fed. 535. A deposition is a written declaration under oath, made upon notice to the adverse party for the purpose of enabling him to attend and cross-examine; or upon written interrogatories. Code Civ. Proc. Cal. § 2004; Code Civ. Proc. Dak. § 465. A deposition is evidence given by a withess under interrogatories, oral or written, and usually written down by an official person.

In its generic sense, it embraces ali written evidence verified by oath, and includes affidavits; but, in legal language, a distinction is maintained between depositions and affidavits. Stimpson v. Brooks, 3 Blatchf. 456, Fed. Cas. No. 13,454. The term sometimes is used in a special sense to denote a statement made orally by a person on oath before an examiner, commissioner, or officer of the court, (but not in open court,) and taken down in writing by the examiner or under his direction. Sweet.

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

Testimony taken down in writing, under oath or affirmation, before a judicial officer, in answer to interrogatories and cross-interrogatories, and usually subscribed by the witness, v. Affidavit.

The testimony of a witness taken upon interrogatories, not in open court, but in pursuance of a commission to take testimony issued by a court, or under a general Jaw on the subject, and reduced to writing and duly authenticated, and intended to be used upon the trial of an action in court. A. deposition is a written declaration under cath, made upon notice to the adverse party for the purpose of enaliling him to attend and cross-examine; or upon written interrogatories, Code Civil Proc. Cal. § 2004; Code Civil Proc. Dak. § 465, A deposition is evidence given by a witness under interrogatories, oral or written, and usually written dowu by au official person.

In its generic sense, it embraces ail written evidence verified by oath, and includes affidavits; but, in legal language, a distinction is maintained between depositions and affidavits. 3 Blatch?. 456. The term sometimes is used in a special sensa to denote a statement made orally by a person on oath before an examiner, commissioner, or officer of the court, (but not in open court,) and taken down in writing by the examiner or under his direction. Sweet.

In ecclesiastical law. The act of depriving a.clergyman, by a competent tribunal, of his clerical orders, to punish him for some offense and to prevent his acting in future in his clericai ehuracter. Ayl. Par. 206.

^ 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-

Evidence dicial officer, in answer parte, with no adverse Depuis,/r. Since.

[L. Lat. depositio, q. v.] In practice. The testimony of a witness put or taken down in writing under oath or affirmation before a commissioner, examiner or other judicial officer, in answer to interrogatories and cross interrogatories. 3 Bl. Com. 449. 2 Tidd's Pr. 810, 811. "The ordinary and usual meaning of the word deposition is confined to written testimony, at least in legal proceedings." Story, J., 1 Gallison's R. 497, 501. A deposition is properly distinguished from an affidavit, (q. v.) which is always an ex parte statement drawn up in writing without any formal interrogation, and signed and sworn to by the party making it; although in affidavits the party is constantly called a deponent, and said to depose. See Depose, Deponent.

In a more general sense. The act of giving testimony under oath; the testimony itself so given; a matter related upon oath. 1 Stra. 564, arg. This seems to have been the original sense of the word, though no longer in use, at least in American practice. Story, J., 1 Gallison's R. ub. sup.