Vasse v. Smith

Vasse v. Smith. The magistrate who, in taking a deposition under the Act of Congress, reduces to writing the testimony of the witness, need hot state that it ivas written in the presence of the witness; but if reduced to writing by the witness himself, it must he done in the presence of the magistrate; and that fact may be proved aliunde. The authority of the magistrate need not be proved otherwise than by his own certificate. Mr. Taylor, for the defendant, objected to a deposition taken under the Act of Congress on the part of the plaintiff, that the judge who took it did not certify that the testimony which was reduced to writing by him, was written in the presence of the witness. The Court (Thruston, J., absent,) overruled the objection. The defendant’s counsel also objected that it did not appear, otherwise than by his own certificate, that Mr. Nevison, who took the deposition, was Recorder of Norfolk, and a judge of a court, &c. The Court overruled this objection also. Mr. E. J. Lee and Mr. C. Lee, for the plaintiff, objected to a deposition taken on the part of the defendant, that the magistrate did not certify, that the testimony of the witness was reduced to writing by the witness in the presence of the magistrate, although it' was certified to have been reduced to writing by the witness and subscribed by him in the presence of the magistrate. [MAJORITY — The Court,] The Court, upon reading the certificate, thought the inference strong that it was written in presence of the magistrate, but permitted the magistrate to be sworn to prove the fact. For the other points decided in this cause, see 6 Cranch, 226, in the Supreme Court of the United States.