Page:Federal Reporter, 1st Series, Volume 4.djvu/728

 71e ÏÏEDEaAJa BSFOSTSB. �United States v. Pings. {District Court, S. D. ifeie York. Kovember 9, 1880.) �1. Deposition— Commission — Kdle of Coubt — Formai, Dbfect. — A com- �mission for the taking of a deposition will not be set aside, where it appears to have been properly executed, although the f orm of instruc- tions to the commisaioner, annexed to the deposition, was not signed by the clerk or the defendant's counsel, as required by a rule of the court which issued the commission. �2. Samb— Pbactice— Rby. St. § 866. — The mode of executing such com- �mission, when issued by a federal court, is not governed by a state statute, but by section 866 of the Revised Statutes. �3. Samb— Rbt. St. § 866— "Accoedino to Common Usage."— A deposi- �tion is not taken " according to common usage," within the meaning of section 860 of the Revised Statutes, if one of the parties to the action writes down the answers for the commissioner, at the rcquest of the latter, in the absence of the other party to the suit, although it does not appear that any injury was thereby suataiued. �Motion to Suppress a Deposition. �Melville Brown, for motion. �Samuel B. Clarke, Ass't Dist. Att'y, contra. �Choate, D. J. This is a motion to suppress a deposition taken under a commission issued to the consul of the United States at Breslau, Germany, for the examination of wituesses upon written interrogatories. One objection taken to the deposition is that the form of instructions to the commissioner annexed to the commission were not signed by the clerk or by defendant's counsel, as required by rule 112 of this court. This is a formai defect only, and does not, I think, justify the setting aside of the commission, if, in faet, it appears to bave been properly executed. Objection is also made that the answers of the witness to the interrogatories were written down by one of the counsel for the plaintiff, who happened to be in Europe at the time and attended upon the taking of this and other testimony. The defendants were not repre- sented before the consul upon the taking of the deposition. �It is insisted, on the part of the defendant, that the provis- ions of the New York Code, § 901, which require the person executing a commission to take testimony to reduce the exam- ����