United States v. Pings
| Decision Date | 09 November 1880 |
| Citation | 4 F. 714 |
| Parties | UNITED STATES v. PINGS. |
| Court | U.S. District Court — Southern District of New York |
Melville Brown, for motion.
Samuel B. Clarke, Ass't Dist. Att'y, contra.
CHOATE D.J.
This is a motion to suppress a deposition taken under a commission issued to the consul of the United States at Breslau Germany, for the examination of witnesses upon written interrogatories. One objection taken to the deposition is that the form of instructions to the commissioner annexed to the commission were not signed by the clerk or by defendant's counsel, as required by rule 112 of this court. This is a formal defect only, and does not, I think justify the setting aside of the commission, if, in fact, it appears to have been properly executed. Objection is also made that the answers of the witness to the interrogatories were written down by one of the counsel for the plaintiff who happened to be in Europe at the time and attended upon the taking of this and other testimony. The defendants were not represented before the consul upon the taking of the deposition.
It is insisted, on the part of the defendant, that the provisions of the New York Code, Sec. 901, which require the person executing a commission to take testimony to reduce the examination to writing himself, or cause it to be reduced to writing by a disinterested party, are made applicable to depositions taken under a commission from a court of the United States. I think, however, that the mode of executing commissions out of this court is governed, not by the state statute, but by the 866th section of the Revised Statutes of the United States, which provides that 'in any case where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage. ' This matter being expressly provided for by act of Congress, the state practice relating to the same matter is not adopted by Revised Statutes, Sec. 914. Beardsley v. Little, 14 Blatchf. 102.
The question, therefore, is whether, in case of a deposition taken under a commission 'according to common usage,' it is a fatal objection that the attorney for one of the parties to the action writes down the answers for the commissioner, the other party to the suit not being represented. I think such a practice, if allowed, might lead to great abuses. A very slight turn of expression given to an answer, and such as might escape the notice of the witness or the magistrate, would, in some cases, materially alter the sense. Nor would it be possible, ordinarily, for the party not represented at the taking of the testimony to show that in the particular case he was injured or prejudiced. The statute of New York which...
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THE MANDU
...of the witnesses Mundt and Scholz were incorporated into the record as testimony, which practice has been condemned as improper. U. S. v. Pings (D. C.) 4 F. 714. The motion was timely made, and the motion to suppress the depositions of the witnesses Ludwig Mundt, Frederick Scholz, Alfred Sc......
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Randall v. Venable
...introducing in it the subject of evidence,' etc. The same view of the law is taken by Judge CHOATE, who succeeded Judge BLATCHFORD. See 4 F. 714. In the case Sage v. Lousky, Judge SWING holds the same doctrine. Other authorities might be cited that sustain this view of the question, but it ......