Whitford v. County of Clark
Decision Date | 20 December 1886 |
Citation | 7 S.Ct. 306,30 L.Ed. 500,119 U.S. 522 |
Parties | WHITFORD v. COUNTY OF CLARK. 1 |
Court | U.S. Supreme Court |
J. B. Henderson, Clinton Rowell, and H. A. Clover, for plaintiff in error.
M. G. Reynolds, W. H. Hatch, J. M. Lewis, and Thos. J. C. Flagg, for defendant in error.
In this case the trial was by the court, a jury having been waived. The record presents a special finding of facts, and certain exceptions to the rulings of the court on the admissibility of testimony. Upon the facts as found we should have had no hesitation in affirming the judgment, but in the rulings excepted to there was error. As part of the evidence on which the findings were made, the court, against the objections of Whitford, the plaintiff in error, allowed a deposition of N. T. Cherry, taken de bene esse under section 863 of the Revised Statutes, to be read, when it was made to appear before the reading that the witness was himself actually present in court, ready and able to testify in the case if called. From the opinion filed on the decision of a motion for a new trial, (Whitford v. Clark Co., 13 Fed. Rep. 837,) it appears that the court held the rule on this point But by section 865 of the Revised Statutes it is expressl provided that, 'unless it appears to the satisfaction of the court that the witness is then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily in firmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the cause.' This was first enacted in the judiciary act of September 24, 1789, c. 20, § 30, (1 St. 90,) and it has been in force from that time until now.
In Patapsco Ins. Co. v. Southgate, 5 Pet. 617, it was said, in reference to this provision, that And in The Samuel, 1 Wheat. 15, Chief Justice MARSHALL said, a deposition taken under the statute de bene esse 'can be read only when the witness himself is unattainable.' See, also, Harris v. Wall, 7 How. 693, and Rutherford v. Geddes, 4 Wall. 224.
It thus appears to have been established at a very early date that depositions taken de bene esse could not be used in any case at the trial, if the presence of the witness himself was actually attainable, and the party offering the deposition knew it, or ought to have known it. If the...
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