U.S. Supreme Court
Harris v. Wall, 48 U.S. 7 How. 693 693 (1849)
Harris v. Wall
48 U.S. (7 How.) 693
The conditions under which a party is permitted and a magistrate authorized to take a deposition de bene esse by the thirtieth section of the Judiciary Act are:
lst. That the witness lives at a greater distance from the place of trial than one hundred miles.
2d. Or is bound on a voyage to sea.
3d. Or is about to go out of the United States.
4th. Or out of such district to a greater distance from the place of trial than one hundred miles before the time of trial.
5th. Or is ancient or very infirm.
And to entitle himself to read the deposition upon the trial, the party must show:
lst. That the witness is dead.
2d. Or gone out of the United States.
3d. Or to a greater distance than one hundred miles from the place where the court is sitting.
4th. Or that, by reason of age, sickness, or bodily infirmity, he is unable to travel and appear at court.
The authority or jurisdiction conferred on the magistrate is special, and confined within certain limits or conditions, and the facts calling for the exercise of it should appear upon the face of the instrument, and not be left to parol proof.
Therefore, where the magistrate, in his notice to the opposite party, only said that the witness was about to "depart the state," and in his certificate omitted to state the reason for taking the deposition, it was not competent for the party, at the trial, to supply the defect by proving that the witness was about to go out of the United States.
The service of the notice upon the opposite party should be certified by the magistrate as well as the marshal.
When counsel have signed an agreement that a deposition may be read in evidence to the jury, it is too late, after its reading, to ask the court to exclude from the consideration of the jury a part of the deposition.
In February, 1839, the following sealed note was executed:
"$10,391.06 Clinton, Miss., February, 1839"
"On or before the first day of January, eighteen hundred and forty, we or either of us promise and bind ourselves, our heirs &c., to pay to Benjamin D. Harris his heirs or assigns, the sum of ten thousand three hundred and ninety-one dollars and six cents, with eight percent interest thereon from the date hereof."
"Given under our hands and seals, the day and date above written."
"T. W. WINTER [SEAL]"
"JAS. M. WALL [SEAL]"
Suit was brought upon this note at May term, 1840. Judgment went against Winter by default, and it is not necessary to notice him further.
Wall put in three pleas. The first two were substantially the same, and were, that the introduction of slaves into Mississippi, as merchandise, after the first day of May, 1833, was prohibited by the constitution of that state, and the contract for their purchase and sale, therefore, void. These pleas averred that the note was given for the purchase of slaves so introduced. To these pleas the plaintiff took issue.
The third plea was that the slaves were above the age of fifteen years, and were introduced into the State of Mississippi from one of the United States as merchandise, and sold to Winter by the plaintiff, without having complied with the fourth and fifth sections of an act entitled "An act to reduce into one the several acts concerning slaves, free negroes, and mulattoes," passed June 15, 1822. To this plea the plaintiff demurred.
In November, 1844, the cause came on for trial, issue having been joined upon the first two pleas, and a joinder in demurrer having been filed as to the third. The jury found a verdict for the defendant upon the issue upon the first two pleas, and the record did not show any judgment of the court upon the demurrer.
In the course of the trial, the plaintiff, Harris took four exceptions to opinions of the court.
1st. As to the admissibility in evidence of the deposition of William S. Rayner.
2d. As to the admissibility in evidence of parts of the deposition of Benjamin G. Sims.
The 3d and 4th were, that Wall had filed a bill in chancery against Harris which Harris had answered, and that Wall could not, in a trial at law, introduce evidence to contradict Harris' answer.
1st exception -- as to Rayner's deposition.
The following is the notice and certificate attached to the deposition.
"Jackson, May 1, 1843"
"Mr. B. D. HARRIS, or Messrs. RIVES & SHELTON, his Attorneys at Law:"
"Take notice, that on Wednesday next, the third day of May, A.D. 1843, at the clerk's office of the Circuit Court of the United States for the Southern District of Mississippi, between the hours of eight o'clock, A. M., and three o'clock, P.M., at the town of Jackson, I shall take the deposition of William S. Rayner (about to depart the state) to be read on the part of the
defendant de bene esse in a certain action at law, depending in said court, wherein said Harris is plaintiff, and Winter and Wall defendants, where you can attend. Yours &c."
"GEO. W. MILLER, U.S. Commissioner"
"Executed by handing Wm. M. Rives a copy between the hours of eleven, A.M., and twelve, M., May 1, 1843."
"ANDERSON MILLER, Marshal"
"By Z. P. WARDELL, D.M."
"The deposition of William S. Rayner, taken before the undersigned commissioner of affidavits in and for the Southern District of Mississippi, at the clerk's office of the Circuit Court of the United States for the Southern District of Mississippi, in the Town of Jackson, between the hours of eight o'clock, A.M., and three, P.M., on the 3d day of May, A.D. 1843, according to a notice by me issued and hereunto annexed; said deposition to be read as evidence on the part of the defendant de bene esse in the trial of a certain action at law, depending and mentioned in the Circuit Court of the United States for the Southern District of Mississippi, wherein Benjamin D. Harris is plaintiff, and Winter and Wall defendants."
"[Then follows the deposition, to which is attached the following certificate:]"
"United States of America, Southern District of Mississippi, sct."
"I, George W. Miller, Commissioner of Affidavits &c. in and for the Southern District of Mississippi, do hereby certify that the foregoing deposition of William S. Rayner was taken, subscribed, and sworn to before me, and by me reduced to writing in the presence of said witness, at the time and place mentioned in the caption thereof, at the time of which I was attended by James M. Wall, one of the defendants, and William M. Rives, Esq., attorney for plaintiff, who declined putting any interrogatories to said witness. I further certify that I am not a counsel for either party, or interested in the event of said cause."
"Given under my hand and seal at Jackson, this 3d day of May, A.D. 1843."
"GEO. W. MILLER, U.S. Commissioner"
The court allowed the deposition to be read in evidence, to which the plaintiff excepted.
2d exception -- respecting the deposition of Sims.
This deposition had upon it the following endorsement, viz.: chanrobles.com-red
"When sworn to, it is agreed this deposition of B. G. Sims may be used in the cause stated in the caption as evidence."
"RIVES & SHELTON & THOMPSON, for Plaintiff"
"MAYES & CLIFTON, for Defendant Wall"
After the defendant had read to the jury the deposition of Benjamin G. Sims, which was done subject to exceptions, the plaintiff moved the court to exclude from the jury that part of said deposition which proved or tended to prove said plaintiff to be a negro trader, but the court overruled said motion, on the ground that the counsel of the plaintiff had agreed in writing on said deposition, that the same might be read in evidence.
This opinion of the court constituted the second exception.
The third and fourth exceptions were abandoned by the counsel for the plaintiff in error, and need not be further noticed. chanrobles.com-red