DEMISE, persons. A term nearly synonymous with death. It is usually
applied in England to the death of the king or queen.
DEMOCRACY, government. That form of government in which the sovereign
power is exercised by the people in a body, as was the practice in some of the
states of Ancient Greece; the term representative democracy has been given to a
republican government like that of the United States.
DEMONSTRATION. Whatever is said or written to designate a thing or
person. For example, a gift of so much money, with a fund particularly referred
to for its payment, so that if the fund be not the testator's property at his
death, the legacy will fail; this is called a demonstrative legacy. 4 Ves. 751;
Lownd. Leg. 85; Swinb. 485.
2. A legacy given to James, who married my cousin, is demonstrative; these
expressions present the idea of a demonstration; there are many James, but only
one who married my cousin. Vide Ayl. Pand. 130; Dig. 12, 1, 6; Id. 35, 1, 34
Inst. 2, 20, 30.
3. By demonstration is also understood that proof which excludes all
possibility of error; for example, mathematical deductions.
DEMURRAGE, mar. law. The freighter of a ship is bound not to detain
it, beyond the stipulated or usual time, to load, or to deliver the cargo, or to
sail. The extra days beyond the lay days (being the days allowed to load and
unload the cargo), are called the days of demurrage; and that term is likewise
applied to the payment for such delay, and it may become due, either by the
ship's detention, for the purpose of loading or unloading the cargo, either
before, or during, or after the voyage, or in waiting for convoy. 3 Kent, Com.
159; 2 Marsh, 721; Abbott on Ship. 192 5 Com. Dig. 94, n., 505; 4 Taunt. 54, 55;
3 Chit. Com. Law, 426; Harr. Dig. Ship and Shipping, VII.
DEMURRER. (From the Latin demorari, or old French demorrer, to wait or
stay.) In pleading, imports, according to its etymology, that the objecting
party will not proceed with the pleading, because no sufficient statement has
been made on the other side; but will wait the judgment of the court whether he
is bound to answer. 5 Mod. 232; Co. Litt. 71, b; Steph. Pl. 61.
2. A demurrer may be for insufficiency either in substance or in form that
is, it may be either on the ground that the case shown by the opposite party is
essentially insufficient, or on the ground that it is stated in an inartificial
manner; for the law requires in every pleading, two thing's; the one, that it be
in matter sufficient; the other, that it be deduced and expressed according to
the forms of law; and if either the one or the other of these be wanting, it is
cause of demurrer. Hob. 164. A demurrer, as in its nature, so also in its form,
is of two kinds; it is either general or special.
3. With respect to the effect of a demurrer, it is, first, a rule, that a
demurrer admits all such matters of fact as are sufficiently pleaded. Bac. Abr.
Pleas, N 3; Com. Dig. Pleader, Q 5. Again, it is it rule that, on a demurrer,
the court will consider the whole record, and give judgment for the party who,
on the whole, appears to be entitled to it. Com. Dig. Pleader, M. 1, M 2; Bad.
Abr. Pleas. N 3; 5 Rep. 29 a: Hob. 56; 2 Wils. 150; 4 East, 502 1 Saund. 285 n.
5. For example, on a demurrer to the replication, if the court think the
replication bad, but perceive a substantial fault in the plea, they will give
judgment, not for the defendant, but for the plaintiff; 2 Wils. R. 1&0;
provided the declaration be good; but if the declaration also be bad in
substance, then upon the same principle, judgment would be given for the
defendant. 5 Rep. 29 a. For when judgment is to be given, whether the issue be
in law or fact, and whether the cause have proceeded to issue or not, the court
is always to examine the whole record, and adjudge for the plaintiff or
defendant, according to the legal right, as it may on the whole appear.
4. It is, however, subject to, the following exceptions; first, if the
plaintiff demur to a plea in abatement, and the court decide against the plea,
they will give judgment of respondeat ouster, without regard to any defect in
the declaration. Lutw. 1592, 1667; 1 Salk. 212; Carth. 172 Secondly, the court
will not look back into the record, to adjudge in favor of an apparent right in
the plaintiff, unless the plaintiff have himself put his action upon that
ground. 5 Barn. & Ald 507. Lastly, the court, in examining the whole record,
to adjudge according to the apparent right, will consider the right in matter of
substance, and not in respect of mere form, such as should have been the subject
of a special demurrer. 2 Vent. 198-222.
5. There can be no demurrer to a demurrer: for a demurrer upon a demurrer, or
pleading over when an issue in fact is offered, is a discontinuance. Salk. 219;
Bac. Abr. Pleas, N 2.
6. Demurrers are general and special, and demurrers to evidence, and to
7. - 1. A general demurrer is one which excepts to the sufficiency of a
previous pleading in general terms, without showing specifically the nature of
the objection; and such demurrer is sufficient, when the objection is on matter
of substance. Steph. Pl. 159; 1 Chit. Pl. 639; Lawes, Civ. Pl. 167; Bac. Abr.
Pleas, N 5; Co. Lit. 72 a.
8. - 2. A special demurrer is one which excepts to the sufficiency of the
pleadings on the,opposite side, and shows specifically the nature of the
objection and the particuIar ground of exception. Co. Litt. 72, a.; Bac. Abr.
Pleas, N 5.
9. A special demurrer is necessary, where it turns on matter of form only;
that is, where, notwithstanding such objections, enough appears to entitle the
opposite party to judgment, as far as relates to the merits of the cause. For,
by two statutes, 27 Eliz. ch. 5, and 4 Ann. ch. 16, passed with a view to the
discouragement of merely formal objections, it is provided in nearly the same
terms, that the judges "shall give judgment according to the very right of the
cause and matter in law as it shall appear unto them, without regarding any
imperfection, omission, defect or want of form, except those only 'Which the
party demurring shall, specifically. and particularly set down and express,
together with his demurrer, as the causes of the same." Since these statutes,
therefore, no mere matter of form can be objected to on a general demurrer; but
the demurrer must be in the special form, and the objection specifically stated.
But, on the other hand, it is to be observed, that, under a special demurrer,
the party may, on the argument, not only take advantage of the particular faults
which his demurrer specifies, but also of all objections in substance, or
regarding the very right of the cause, (as the statute expresses it.) as under
those statutes, need not be particularly set down. It follows, therefore, that
unless the objection be clearly of the substantial kind, it is the safer course,
in all cases, to demur specially. Yet, where a general demurrer is plainly
efficient, it is more usually adopted in prctice; because the effect of the
special form being to apprise the opposite party more distinctly of the nature
of the objection, it is attended with the inconvenience, of enabling him to
prepare to maintain his pleading by argument, or of leading him to apply the
earlier to amend. With respect to the degree of particularity, with which, under
these statutes, the special demurrer must assign the ground of objection, it may
be observed, that it is not sufficient to object, in general terms, that the
pleading is "uncertain, defective, and informal," or the like, but if is
necessarily to show in what, it respect, uncertain, defective, and informal. 1
Saund. 161, n. 1, 337 b, n. 3; Steph. Pl. 159, 161; 1 Chit. Pl. 642.
10.- 3. A demurrer to evidence is analogous to a demurrer in pleading; the
party from whom it comes declaring that he will not proceed, because the
evidence offered on the other side, is not sufficient to maintain the issue.
Upon joinder in demurrer, by the opposite party, the jury are, in general,
discharged from giving any verdict; 1 Arch. Pr. 186; and the demurrer being
entered on record, is afterwards argued and decided by the court in banc; and
the judgment there given upon it, may ultimately be brought before a court of
error. See 2 H. Bl. 187 4 Chit. Pr. 15 Gould on Pl. c. 9, part 2, §47 United
States Dig. Pleading, Viii.
11. - 4. Demurrer to interrogatories. By this phrase is understood the
reasons which a witness tenders for not answering a particular question in
interrogatories. 2 Swanst. R. 194. Strictly speaking, this is not a demurrer,
which admits the facts stated, for the purpose of taking the. opinion of the
court but by an abuse of the term, the witness objection to answer is called a
demurrer, in the popular sense. Gresl. Eq. Ev. 61.
12. The court are judicially to determine their validity. The witness must
state his objection very carefully, for these demurrers are held to strict
rules, and are readily overruled if they cover too much. 2 Atk. 524; 1 Y. &
J. 32. See, in general, as to demurrers,, Bac. Abr. Pleas, N; Com. Dig. Pleader,
Q; Saund. Rep. Index, tit. Demurrers; Lawes Civ. Pl. ch. 8; 1 Chit. Pl. 639-649
Bouv. Inst. Index, h. t.
DEMURRER BOOK Eng. law. When an issue in law is formed, a transcript
is made upon paper of all the pleadings that have been filed or delivered
between the parties, which transcript is called the demurrer book. Steph. Pl.
95. See Paper book.
DEMY SANKE or SANGUE. This is a barbarous corruption of, demi sang,
half-blood. (q. v.)
DENARII. An ancient general term for any sort of pecunia numerata, or
ready money. The French use the word denier in the same sense: payer de ses
DENARIUS DEI. A term used in some countries to signify a certain sum
of money which is given by one of the contracting parties to the other, as a
sign of the completion of the contract.
2. It does not however bind the parties he who received it may return it in a
limited time, or the other may abandon it, and avoid the engagement.
3. It differs from arrhae in this, that the latter is a part of the
consideration, while the denarius dei is no part of it. 1 Duverg. n. 132 3
Duverg. n. 49; Repert. de Jur. verbo Denier a Dieu.
DENIAL, pleading. To traverse the statement of the opposite party a
defence. See Defence; Traverse.
DENIER A DIEU, French law. It is a sum of money which the hirer of a
thing gives to the other party as evidence, or for the consideration of the *
contract, which either party may annul, within twenty-four hours, the one who,
giving the denier a dieu, by demanding, and the other by returning it. It
differs from arrhae. Vide Arrhae; Denarius Dei.
DENIZATION, Eng. law.. The act by which a foreigner becomes a subject
of England; but he has not the rights either of a natural born subject, nor of
one who has become naturalized. Bac. Ab. Aliens, B.
DENIZEN, English law. An alien born, who has obtained, ex donatione
legis, letters patent to make him au English subject.
2. He is intermediate between a natural born subject and an alien. He may.
take lands by purchase or devise, which an alien cannot, but he is incapable of
taking by inheritance. 1 Bl. Com. 374. In the United States there is no such
DENUNCIATION, crim. law. This term is used by the civilians to signify
the act by which au individual informs a public officer, whose duty it is to
prosecute offenders, that a crime has been committed. It differs from a
complaint. (q. v.) Vide 1 Bro. C. L. 447; 2 Id. 389; Ayl. Parer. 210, Poth.
Proc. Cr. sect. 2, §2.
DEODAND, English law. This word is derived from Deo dandum, to be
given to God; and is used to designate the instrument, whether it be an animal
or inanimate thing, which has caused the death of a man. 3 Inst. 57; Hawk. bk.
1, c. 8.
2. The deodand is forfeited to the king, and was formerly applied to pious
uses. But the presentment of a deodand by a grand jury, under their general
charge from the judge of assize, is void. 1 Burr. Rep. 17.
DEPARTMENT. A portion of a country. In France, the country is divided
into departments, which are somewhat similar to the counties in this country.
The United States have been divided into military departments, including certain
portions of the country. 1 Pet. 293.
2. By department is also meant the division of authority, as, the department
of state, of the navy, &c.
DEPARTMENT OF THE NAVY, government. The Act of April 80, 1798, 1
Story's Laws, 498, establishes an executive department, under the denomination
of the department of the navy, the chief officer of which shall be called the
secretary of the navy. (q. v.)
2. A principal clerk, and such other clerks as he shall think necessary,
shall be appointed by the secretary of the navy, who shall be employed in such
manner as he shall deem most expedient. In case of vacancy in the office of the
secretary, by removal or otherwise, it shall be the duty of the principal clerk
to take charge and custody of all books, records, and documents of said office.
Id. s. 2
DEPARTMENT OF STATE, government. The laws of the United States provide
that there shall be an executive department, denominated the department of
state; and a principal officer therein, called the secretary of state. (q. v.)
Acts of July 27, 1789; September 15, 1789, s. 1. There shall be in such
department an inferior officer, to be appointed by the Secretary, and employed
therein, as he shall deem proper, to be called the chief clerk of the department
of state. (q. v.) Act of July 27, 1789, s. 2.
2. He may employ, besides, one chief clerk, whose compensation shall not
exceed two thousand dollars. per annum; two clerks, whose compensation shall not
exceed one thousand six hundred dollars; four clerks, whose compensation shall
not exceed one thousand four hundred dollars each; one clerk, whose compensation
shall not exceed one thousand dollars; two clerks, whose compensation shall not
exceed eight hundred dollars each; one, messenger and assistant, at a
compensation not exceeding one thousand and fifty dollars per annum; one
superintendent of the patent office, whose compensation shall not exceed one
thousand five hundred dollars; and, in the patent office, one clerk, whose
compensation shall not exceed one thousand dollars; one machinist, at a
compensation not exceeding seven hundred dollars; and one messenger, at a
compensation not exceeding four hundred dollars per annum. Act of May 26, 1824;
Act of April 20, 1818, s. 2.
3. By the Act of March 2, 1827, 3 Story's Laws, 2061, he is authorized to
employ, in the state department, one additional clerk, whose compensationsh all
not exceed sixteen hundred dollars; two additional clerks, whose compensation
shall not exceed one thousand dollars each; and one additional clerk for the
patent office, whose compensation shall not exceed eight hundred dollars.
DEPARTMENT OF THE TREASURY OF THE UNITED STATES, government. The
department of the treasury is constituted of the following officers, namely: the
secretary of the treasury, (q. v.) the head of the department, two comptrollers,
five auditors, a treasurer, a register, and a commissioner of the land
2. Each of these officers is required to perform certain appropriate duties,
in which they are assisted by numerous clerks. They are prohibited from carrying
on the business of trade or commerce, from being the owners or part owners of
any sea vessel, from buying any public lands, from disposing or purchasing any
securities of any state, or of the United States, from receiving or applying to
their own use any emolument or gain in transacting business in this department,
other than what shall be allowed by law, under the penalty of three thousand
dollars, and of being removed from office, and of being thereafter incapable of
holding any office under the United States. Gord. Dig. 228 to 248
DEPARTMENT OF WAR, government. The act of August 7, 1789, 1 Story's
Laws, 31, creates an executive department, to be denominated the department of
war; and there shall be a principal officer therein, to be called the secretary
for the department of war. (q. v.) .
2. There shall be in the said department, an inferior officer, to be
appointed by the secretary, to be employed therein, and to be called the chief
clerk in the department of war, and who, whenever the said principal officer
shall be removed by the president, or in any other case of vacancy, shall,
during such vacancy, have the charge and custody of all records, books, and
papers, appertaining to the said department. Id.
DEPARTURE, pleading. Said to be when a party quits or departs from the
case, or defence, which he has first made, and has recourse to another; it is
when his replication or rejoinder contains matter not pursuant to the
declaration, or plea, and which does not support and fortify it. Co. Litt. 304,
a; 2 Saund. 84, a, n. (1); 2 Wils. 98; 1 Chit. Pl. 619. The following example
will illustrate what is a departure: if to assumpsit, the defendant plead
infancy, and to a replication of necessaries, rejoin, duress, payment, release,
&c., the rejoinder is a departure , and a good cause of demurrer, because
the defendant quits or departs from the case or defence which he first made,
though either of these matters, newly pleaded, would have been a good bar, if
first pleaded as such.
2. A departure in pleading is never allowed, for the record would, by such
means, be spun out into endless prolixity; for he who has departed from and
relinquished his first plea, might resort to a second, third, fourth, or even
fortieth defence; pleading would, by such means, become infinite. He who had a
bad cause, would never be brought to issue, and he who had a good one, would
never obtain the end of his suit. Summary on Pleading, 92; 2 Saund. 84, a. n.
(l); 16 East, R. 39; 1 M. & S. 395 Coin. Dig. Pleader, F 7, 11; Bac. Abr.
Pleas, L; Vin. Abr. Departure; 1 Archb. Civ. Pl. 247, 253; 1 Chit. Pl. 618.
3. A departure is cured by a verdict in favor of him who makes it, if the
matter pleaded by way of departure is a sufficient answer, in substance, to what
is before pleaded by the opposite party; that is, if it would have been
sufficient, if pleaded in the first instance. 2 Saund. 84 1 Lill. Ab. 444.
DEPARTURE, maritime law. A deviation from the course of the voyage
insured. 2. A departure is justifiable or not justifiable it is justifiable ill
consequence of the stress of weather, to make necessary repairs, to succor a
ship in distress, to avoid capture, of inability to navigate the ship, mutiny of
the crew, or other compulsion. 1 Bouv. Inst. n. 1189.
DEPENDENCY. A territory distinct from the country in which the supreme
sovereign, power resides, but belonging rightfully to it, and subject to the
laws and regulations which the sovereign may think proper to prescribe. It
differs from a colony, because it is not settled by the citizens of the
sovereign or mother state; and from possession, because it is held by other
title than that of mere conquest: for example, Malta was considered a dependency
of Great Britain in the year 1813. 3 Wash. C. C. R. 286. Vide act of congress,
March 1, 1809, commonly called the non-importation law.
DEPENDENT CONTRACT. One which it is not the duty of the contractor to
perform, until some obligation contained in the same agreement has been
performed by the other party. Ham. on Part. 17, 29, 30, 109.
DEPONENT, witness. One who gives information, on oath or affirmation,
respecting some facts known to him, before a magistrate he who makes a
DEPOPULATION. In its most proper signification, is the destruction of
the people of a country or place. This word is, however, taken rather in a
passive than an active one; we say depopulation, to designate a diminution of
inhabitants, arising either from violent causes, or the want of multiplication.
Vide 12 Co. 30.
DEPORTATION, civil law. Among the Romans a perpetual banishment,
depriving the banished of his rights as a citizen; it differed from relegation
(q. v.) and exile. (q. v.). 1 Bro. Civ. Law, 125 note; Inst. 1, 12, 1 and 2;
-Dig. 48, 22, 14, 1.
TO DEPOSE, practice. To make a deposition; to give testimony as a
TO DEPOSE, rights. The act of depriving an individual of a public
employment or office, against his will. Wolff, §1063. The term is usually
applied to the deprivation of all authority of a sovereign.
DEPOSIT, contracts. Usually defined to be a naked bailment of goods to
be kept for the bailor, without reward, and to be returned when he shall require
it. Jones' Bailm. 36, 117; 1 Bell's Com. 257. See also Dane's Abr. ch. 17, aft.
1, §3; Story on Bailm. c. 2, §41. Pothier defines it to be a contract, by which
one of the contracting parties gives a thing to another to keep, who is to do so
gratuitously, and obliges himself to return it when he shall be requested.
Traite du Depot. See Code Civ. tit. 11, c. 1, art. 1915; Louisiana Code, tit.
13, c. 1, art. 2897.
2. Deposits, in the civil law, are divisible into two kinds; necessary and
voluntary. A necessary deposit is such as arises from pressing necessity; as,
for instance, in case of a fire, a shipwreck, or other overwhelming calamity;
and thence it is called miserabile depositum. Louis. Code 2935. A voluntary
deposit is such as arises without any such calamity, from the mere consent or
agreement of the parties. Dig. lib. 16, tit. 3, §2.
3. This distinction was material in the civil law, in respect to the remedy,
for in voluntary deposits @ the action was only in simplum; in the other in
duplum, or two-fold, whenever the depositary was guilty of any default. The
common law has made no such distinction, and, therefore, in a necessary deposit,
the remedy is limited to damages co-extensive with the wrong. Jones, Bailm.
4. Deposits are again divided by the civil law into simple deposits, and
sequestrations; the former is when there is but one party depositor (of whatever
number composed), having a common interest; the latter is where there are two or
more depositors, having each a different and adverse interest. See
5. These distinctions give rise to very different considerations in point of
responsibility and rights. Hitherto they do not seem to have been incorporated
in the common law; though if cases should arise, the principles applicable to
them would scarcely fail of receiving general approbation, at least, so far as
they affect the rights and responsibilities of the parties. Cases of judicial
sequestration and deposits, especially in courts of chancery and admiralty, may
hereafter require the subject to be fully investigated. At present, there have
been few cases in which it has been necessary to consider upon whom the loss
should fall when the property has perished in the custody of the law. Story on
6. There is another class of deposits noticed by Pothier, and called by him
irregular deposits. This arises when a party having a sum of money which he
doe's not think safe in his own hands; confides it to another, who is to return
him, not the same money , but a like sum when he shall demand it. Poth. Traite
du Depot, ch. 3, §3. The usual deposit made by a person dealing with a bank is
of this nature. The depositor, in such case, becomes merely a creditor of the
depositary for the money or other thing which he binds himself to return.
7. This species of deposit is also called an improper deposit, to distinguish
it from one that is regular and proper, and which latter is sometimes called a
special deposit. 1 Bell's Com. 257-8. See 4 Blackf. R. 395.
8. There is a kind of deposit which may, for distinction's sake, be called a
quasi deposit, which is governed, by the same general rule as common deposits.
It is when a party comes lawfully to the possession of another person's property
by finding. Under such circumstances, the finder seems bound to the same
reasonable care of it as any voluntary depositary ex contractu. Doct. & Stu.
Dial. 2, ch. 38; Story on Bailm. §85; and see Bac. Abr. Bailm. D. See further,
on the subject of deposits, Louis. Code, tit. 13; Bac. Abr. Bailment; Digest,
depositi vel contra; Code, lib. 4, tit. 34; Inst. lib. 3, tit. 15, §3; Nov. 73
and 78; Domat, liv. 1, tit. 7, et tom. 2, liv. 3, tit. 1, s. 5, n. 26; 1 Bouv.
Inst. n. 1053, et seq.
DEPOSITARY, contracts. He with whom a deposit is confided or made.
2. It is, the essence of the contract of deposits that it should be
gratuitous on the part 'of the depositary. 9 M. R. 470. Being a bailee without
reward, the depositary is bound to slight diligence only, and he is not
therefore answerable except for gross neglect. 1 Dane's Abr. c. 17, art. 2. But
in every case good faith requires that he should take reasonable care; and what
is reasonable care, must materially depend upon the nature and quality of the
thing, the circumstances under which it is deposited, and sometimes upon the
character and confidence, and particular dealing of the parties. See 14 Serg.
& Rawle, 275. The degree of care and diligence is not altered by the fact,
that the depositary is the joint owner of the goods with the depositor; for in
such a case, if the possessor is guilty of gross negligence, he will still be
responsible, in the same manner as a common depositary, having no interest in
the thing. Jones' Bailm. 82, 83. As to the care which. a depositary is bound to
use, see 2 Ld. Raym. 900, 914; 1 Ld. Raym. 655; 2 Kent's Com. 438; 17 Mass. R.
479, 499; 4 Burr.. 2298; 14 Serg. & Rawle, 275; Jonees' Bailm. 8; Story on
Bailm. §63, 64.
3. The depositary is bound to return the deposit in individuo, and in the
same state in which he received it; if it is lost, or injured, or spoiled, by
his fraud or gross negligence, he is responsible to the extent of the loss or
injury. Jones' Bailm. 36, 46, 120; 17 Mass. R. 479; 2 Hawk. N. Car. R. 145; 1
Dane's Abr. c. 17, art. 1 and 2. He is also bound to restore, not only the thing
deposited, but any increase or profits which may have accrued from it; if an
animal deposited bear young, the latter are to be delivered to the owner. Story
on Bailm. §99.
4. In general it may be laid down that a depositary has no, right to use the
thing deposited. Bac. Abr. Bailm. D; Jones' Bailm. 81, 82; 1 Dane's Abr. c. 17,
art. 11, §2. But this proposition must be received with many qualifications.
There are certain cases, in which the use of the thing may be necessary for the
due preservation of the deposit. There are others, again, where it would be
mischievous; and others again, where it would be, if not beneficial, at least
indifferent. Jones' Bailm. 81, 82; Owen's R. 123, 124; 2 Salk. 522; 2 Kent's
Com. 450. The best general rule on the subject, is to consider whether there may
or may not be an implied consent, on the part of the owner, to the use. If the
use would be for the benefit of the deposit, the assent of the owner may well be
presumed; if to his injury, or perilous, it ought not to be presumed; if the use
would be indifferent, and other circumstances, do not incline either way, the
use may be deemed not allowable. Jones' Bailm. 80, 81; Story on Bailm. §90; 1
Bouv. Inst. n. 1008, et seq.
DEPOSITION, evidence. The testimony of a witness reduced to writing,
in due form of law, taken by virtue of a commission or other authority of a
2. Before it is taken, the witness ought to be sworn or affirmed to declare
the truth, the whole truth, and nothing but the truth. It should properly be
written by the commissioner appointed to take it, or by the witness himself; 3
Penna. R. 41; or by one not interested in the matter in dispute, who is properly
authorized by the commissioner. 8 Watts, R. 406, 524. It ought to answer all the
interrogatories, and be signed by the witness, when he can write, and by the
commissioner. When the witness cannot write, it ought to be so stated, and he
should make his mark or cross.
3. Depositions in criminal cases cannot be taken without the consent of the
defendant. Vide, generally, 1 Phil. Ev. 286; 1 Vern. 413, note; Ayl. Pand. 206;
2 Supp. to Ves. jr. 309; 7 Vin. Ab. 553; 12 Vin. Ab. 107; Dane's Ab. Index, h.
t.; Com. Dig. Chancery, P 8, T 4, T 5; Com. Dig. Testmoigne, C 4.
4. The Act of September 24, 1789, s. 30, 1 Story's L. U. S. 64, directs that
when the testimony of any person shall be necessary in any civil cause depending
in any district, in any court of the United States, who shall live at a greater
distance from the place of trial than one hundred miles, or is bound on a voyage
to sea, or is about to go out of the United States, or out of such district, and
to a greater distance from the place of trial than as aforesaid, before the time
of trial, or is ancient, or very infirm, the deposition of such person may be
taken de bene esse, before any justice or judge of any of the courts of the
United States, or before any chancellor, justice, or judge of a supreme or
superior court, mayor, or chief magistrate of a city, or judge of a county court
or court of common pleas of any of the United States, not being of counsel or
attorney to either of the parties, or interested in the event of the cause;
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 ou 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 being notified, not less than at the rate of one day, Sundays
exclusive, for every twenty miles travel . And in causes of admiralty and
maritime jurisdiction, or other causes of seizure, when a libel shall be filed,
in which an adverse party is not named, and depositions of persons,
circumstanced as aforesaid, shall be taken before a claim be put in, the like
notification, as aforesaid, shall be given to the person having the agency or
possession of the property libelled at the time of the capture or seizure of the
same, if known to the libellant. And every person deposing as aforesaid, shall
be carefully examined and cautioned, and sworn or affirmed to testify the whole
truth, and shall subscribe the testimony by him or her given, after the same
shall be reduced to writing, which shall be done only by the magistrate taking
the deposition, or by the deponent in his presence. And the deposition so taken
shall be retained by such magistrate, until he deliver the same with his own,
hand into the court for which they are taken, or shall, together with a
certificate of the reasons as aforesaid, of their being taken, and of the
notice, if any given, to the adverse party, be by him, the said magistrate,
sealed up and directed to such court, and remain under his seal until opened in
court. And any person may be compelled to appear and depose as aforesaid, in the
same manner as to appear and testify in court. And in the trial of any cause of
admiralty or maritime jurisdiction in a district court, the decree in which may
be appealed from, if either party shall suggest to and satisfy the court, that
probably it will not be in his power to produce the witnesses, there testifying,
before the circuit court, should an appeal be had, and shall move that their
testimony shall be taken down in writing, it shall be so done by the clerk of
the court. And if an appeal be had, such testimony may be used on the trial of
the same, if it shall appear to the satisfaction of the court, which shall try
the appeal, that the witnesses are then dead, or gone out of the United States,
or to, a greater distance than as aforesaid, from the place where the court is
sitting; or that, by reason of age, sickness, bodily infirmity, or imprisonment,
they are unable to travel or, appear at court, but not otherwise. And unless the
same shall be made to appear on the trial of any cause, with respect to
witnesses whose depositions may have been taken therein, such depositions shall
not be admitted or used in the cause. Provided, that nothing herein shall be
construed to prevent any court of the United States from granting a dedimus
potestatem, to take depositions according to common usage, when it may be
necessary to prevent a failure or delay of justice; which power they shall
severally possess nor to extend to depositions taken in perpetuam rei memoriam,
which, if they relate to matters that may be cognizable in any court of the
United States, a circuit court, on application thereto made as a court of
equity, may, according to the usages in chancery, direct to be taken.
5. The Act of January 24, 1827, 3 Story's L. U. S . 2040, authorizes the
clerk of any court of the United States within which a witness resides or where
he is found, to issue a subpoena to compel the attendance of such witness, and a
neglect of the witness to attend may be punished by the court whose clerk has
issued the subpoena, as for a contempt. And when papers are wanted by the
parties litigant, the judge of the court within which they are, may issue a
subpoena duces tecum, and enforce obedience by punishment as for a contempt. For
the form and style of depositions, see Gresl. Eq. Ev. 77.
DEPOSITION, eccl. law. The act of depriving a clergyman, by a
competent tribunal, of his clerical orders, to punish him for some offence, and
to prevent his acting in future in his clerical character. Ayl. Par. 206.