N. and J. Dick and Company v. Hardin D. Runnels

N. and J. Dick and Company v. Hardin D. Runnels. By the 30th section of the Judiciary Act of1789 (1 Statutes at Large, 88), depositions may be taken in certain cases, .and notice, thereof must be served on the adverse party or his attorney, provided either of them is within one hundred miles of the placé where such deposition is taken. A certificate of the'person before whom the deposition was taken, tbat neither the adverse party nor his attorney lived within one hundred miles of such place, and that therefore no notice was made out, ie sufficient. It is not necessary for him to state that they were not actually within one hundred miles. If they had been temporarily witnin that distance, and the certifying officer did not know it, the certificate would still haye been good-.. If either of the two facts, viz. that the party resided within one hundred miles, or that he'was temporarily within that distance, and that the magistrate knew it, were estabi.shed by parol proof, the certificate would then be irregular and void. This case came up from, the Circuit Court of the .United States for the District of Mississippi, on a certificate of division in opinion between the judges thereof, ' The.only question involved was the construction of a part of the 30th section of .the Judiciary Act of 1789 (1 Statutes at Large, 88), which part is as follows, After providing for taking the testimony of persons “ who shall live at a greater distance from the place of trial than one hundred miles,” the section proceeds thus : — “ Provided, that a notification from the magistrate, before whom the deposition is to be taken, to the adverse party to- be present at the taking of the same, and to put interrogatories, if he'think fit, be first made out and served on the adverse party, or his attorney, as either may be nearest, if either is within one hundred miles of the place of such caption, allowing time for their attendance after notified, -not less than at the rate of one day, Sundays exclusive, for every twenty miles’ -travel.”' On the trial of tho cause,, in June, 1838, the plaintiffs’ counsel offered in- evidence a. deposition, attached to which was a certificate in these words, viz. . — “ And I, the said Paul Bertus, recorder of the first municipality, and acting mayor of the city of New Orleans aforesaid, do certify,. that the deposition of the. said William Christy was taken as afore-? said, because he, the witness, lives at. New Orleans aforesaid, a greater distance than one hundred miles from Jackson, the place of trial of the suit or matter of controversy aforesaid, and I caused no notification of the time and place of the taking-of said deposition to be made out and served upon Harden D. Runnels, the adverse party, or his counsel, to be present.at the taking of said deposition, and to put interrogatories, if he or they thought proper, because neither the said Hardin D. Runnels nor his counsel live within one hundred miles of the place' of caption to this deposition, being the place where the same is 'taken; and I do further certify, that the deposition was taken down by the witness, and signed by him in my presence, after being duly sworn ; and. I do further certify, that I am not of -counsel or attorney to either of the ■ parties aforesaid, or- interested in the event of the caúse or controversy aforesaid. “ In testimony whereof I have hereunto set my hand and seal, the day and year first before written. . [seal.] Signed, Paul Beetus,. Recorder No. 1, Mayor pro tern.”• And thereupon a motion was made by the defendant’s counsel to-exclude the deposition,.on the ground “that the commissioner taking said deposition did not certify, that neither the said defendant or his attorney was within one hundred miles of New Orleans, the place of taking tire deposition, at the time of taking the same.” Upon which question the judges were opposed in opinion, which is ordered to be certified to the Supreme Court of the United States, which is done accordingly. Mr. Bibb, counsel for the defendant, submitted the case to the Court. [MAJORITY — Mr.- Justice McLEAN] Mr.- Justice McLEAN delivered the opinion of the Court. The only point raised in this case is,-whether the certificate of the officer who took the .deposition objected to is sufficient. He states that he did not give the defendant Nunn els, nor his counsel, notice, as neither Jived within one hundred miles of the place where the deposition was taken. This may be true, it is alleged, and yet one or both of them might have been in New Orleans, or near to it,' .at the date of the-certificate. ■ The law requires that- a “ notice shall be made out and served on the adverse party or .his attorney, as either may be nearest, if either is within one hundred miles of the place of such caption, ”&c. The officer'taking the deposition is presumed to know the residency of the party entitled to notice, as the person at whose instance the deposition is taken is bound to communicate that fact to him. But beyond this, he cannot be presumed to know or required to certify. If, in the words of the act, hé certifies “ that the adverse party or his attorney is not within one hundred miles,” he is presumed so to state from the known fact that the residence of neither is within the distance specified. If the party or his counsel ’live within the hundred miles, a notice left, at?his residence would, be good. ' Where the party entitled to a notice lives more than one húndred ■ miles from the place where the deposition is taken, and the officer so certifies, it would be sufficient, although it might be proved that such party was within the distance specified at the time, if the fact were unknown to the officer and the person in whose behalf the deposition was taken. The certificate may be, cóntrovérted by parol proof, especially in regard to the facts stated of which the magistrate is not supposed to have official knowledge. And if it were made to appear that the person entitled to notice did not live •one hundred miles from the. place of the cdptiori of the deposition, or if he were known to the magistrate or the party to be témpora- • rily within that distance where á notice might ble served on him, • though his residence might be more than one hundred miles distant,, withe at a'notice, the proceeding would be irregular and the depo■sition inadmissible. Upon .the whole,.we think the certificate under consideration was. sufficient,. and that the deposition, on the ground "stated, ought hot to be overruled. Order. This cause camie on to be heard on the transcript of the record from the Circuit Court" of the United States for the Southern District of-Mississippi, and.on the point and question on.which the.Judges of the .said Circuit Court, were opposed’. in opinion, and which was certified tp this court for its opinion, agreeably to the act of Congress in such case made and provided, and was argued by counsel. On consideration whereof, it is the opinion of this court that the certificate under consideration was sufficient, and that the deposition,, on the ground stated, ought not to be overr ruled. Whereupon it is now here ordered and adjudged that it bé so certified to the-said Circuit Court,.