the interrogatories shall not only be entered in the deposition as put, but that they shall be put to the witness by the officer, though they may be framed by the attorney

In the states where depositions are taken exclusively upon commission and interrogatories, the law and practice is uniform that the examination shall be confined to the interrogatories and cross-interrogatories annexed to the commission, and neither parties or counsel are admitted.

Whilst, as already observed, the practice in most of the states is by notice merely between the parties, a distinction is in some cases made, where the witnesses are out of the state, that the examination must be by a commission, either with or without written interrogatories, as the prac tice may be.

In the states of Arkansas, Kentucky, and Missouri there is a peculiar provision in regard to the taking of depositions upon notice, which may be deemed worthy of special mention and the attention of the Association.

Upon any notice for taking depositions out of the state, or where more than three days are to intervene, the adverse party may, by a counter-notice given within the day succeeding the service upon him, require that the deposition shall be taken upon written interrogatories and cross-interrogatories, to be summarily filed so as to accompany the notice. The option, it will be observed, rests with the party who will thus lose the right of oral cross-examination, and thus no injustice is suffered. The advantage seems to be in avoiding the expense and difficulty to which he may be put, either in attending or employing distant counsel to attend for him; and when the deposition is to be taken in remote or out of the way places, such a privilege may obviously be highly convenient.

As to the remaining point, under the fourth inquirywhether or not the names of the witnesses to be examined

must, as a rule, be disclosed in the notice or commissionit is found that the states are about equally divided.

Fifth. Among other differences as to practice and formalities is that as to open examinations; that is to say, whether the parties and their counsel shall be excluded at the examination; and it depends, as already stated, upon the method pursued-whether by close commission, with the interrogatories annexed, in which case they are excluded; or upon notice or open commission, when the practice is almost as uniform that they may attend.

The formalities to be observed, and the powers entrusted to officers authorized to take depositions, are too various for mention, and reference must be had to the Appendix for the details, particularly as to the much-vexed question as to their power to enforce the attendance or testimony of an unwilling or refractory witness.

Concerning the power of a commissioner or officer to reject testimony, we find there is an almost unbroken current of law and practice that he cannot exclude testimony, but if insisted upon, he must report it, together with the objection, to the court for determination. The only exception appears to be in Arkansas, though in Delaware and Georgia the officer may also state his own ruling. The officer is specially enjoined in some states to take down the language of the witness as nearly as possible, and without prompting or interference by counsel. In New York and Wisconsin the statute requires that he shall insert every answer or declaration made by the witness, which either party shall require. In some of the states there is a provision that the witness may correct his deposition before signing it, if he wish; but it does not appear whether this extends to the expunging of anything he may have said.

Sixth. The reports made in answer to the sixth inquiry, To whom and how must depositions be returned and “pub

lication made"? indicate that little remains of this ceremony, once considered so important. We have not only lost the material distinction as to depositions de bene esse (originally signifying such as, by reason of some special emergency, were permitted to be taken before the issue was made up), but the solemnity of publication has become useless under the open and oral examination of witnesses upon mere notice. From the decision by the Court of Appeals of England, in Vane vs. Vane, reported in Wharton on Evidence, sec. 184, note, it seems to be obsolete in England also. The case involved a title, depending upon a disputed marriage and the defendant's legitimacy. It was sought to introduce depositions which had been taken in 1802, upon a bill to perpetuate evidence. But "publication" was resisted because the parties were not the same. The court overruled the objection, notwithstanding the old rule and authorities-Mellish, Lord J.-disposing of the precedents by saying "that the views of the courts as to the best methods to be adopted for the discovery of truth have entirely changed in recent times."

Generally, throughout this country, depositions are now returned to the clerk of the court, who may open and divulge the contents upon the request of either party and at any time.

Some show of formality is retained in a few of the states, by requiring depositions to be returned to the court by the officer taking them, and opened upon its order; but even in those cases we apprehend that publication is practically in the hands of the clerk. South Carolina is the only state where the rule keeps them closed until the trial, whilst in Massachusetts it would seem that the party who takes depositions may carry them open fourteen days before filing them.

Seventh. The inquiry made by the Association in the resolution, touching the mode of "perpetuating testimony out

of court," or in anticipation of a future suit, has not been generally answered in the reports sent to the committee; but it appears that in twelve of the states, at least, provision has been made by statute for a summary proceeding to perpetuate testimony in such cases.

Generally it must be upon petition to a court of record, setting forth the claim or case anticipated, and the names. of the parties concerned; and after notice to them, the court is authorized to make an order for the examination of the proposed witnesses in the usual mode, and under terms prescribed. The depositions so taken are returned to the clerk of the court, to be filed for future use against the persons so notified, or those claiming under them, but under conditions more or less restricted in some of these statutes. The clerk

in some cases is required to record them, and certified copies of the record made available.

This statutory proceeding may be had in Maine on application to a probate judge, justice of the peace, notary public, or clerk of the Supreme Court; in Massachusetts, on application to two justices of the peace, one of whom must be a probate judge, or the clerk of the Supreme Court, or a master in chancery, or a counselor-at-law; in New Hampshire, on application to two justices of the peace, one of whom must be of the quorum; in Rhode Island, to a master in chancery, and in Vermont, to the county court. In Maine, Massachusetts, and New Hampshire the depositions may be filed and recorded in the Registry of Deeds, and certified copies afterwards used.

CONCLUSIONS.

The committee are also instructed to make such suggestions on the general subject referred to them as they may deem expedient for the action of the Association; and the subject is one of such immense practical importance, even

if regarded only with reference to the relations and dependence of the judicial tribunals of the numerous states upon each other-a dependence constantly increasing-that it certainly behooves this Association to contribute every effort for enlarging all facilities between them, by comity and by uniform legislation, towards mutual aid in proceedings to obtain testimony.

The subject has still wider bearings. In any system of jurisprudence, the means of discovering the very truth of the matter in litigation must be a prime necessity. While the true mode of producing testimony, and the only one which for ages was practised in the law courts of England, is by presenting the witness face to face with the tribunal which is to weigh and determine the facts, the modern systems of procedure, yielding to necessity, now as universally in all civil cases, and some of them in criminal cases, admit. the deposition of the witness in exceptional cases. Yet, although depositions now rank, in legal theory, as oral and primary evidence, it is not to be denied that eminent judges and authors have made observations by no means laudatory of this sort of testimony as a vehicle of truth.

Lord Erskine, when sitting in Chancery, referred to the frail and imperfect mode of examining into facts in this court," as making it almost a matter of right to have an issue of devisavit vel non. (13 Vesey, 91.) Few men had better opportunities than he for comparing and estimating

the two modes.

Mr. Justice Grier, in a case of collision of ships and contradictory depositions by the crews and passengers, besides reflecting severely upon the provisions of the act of 1789, for taking depositions, made a general comment which is pertinent: "In such cases," he said, "the oral examination of witnesses before the court, with a stringent cross-examination by skillful counsel, is almost the only method of elicit