Page:Federal Reporter, 1st Series, Volume 4.djvu/729

 CNITED STATES V. PINGS. 715 �ination to writing himself, or cause it to be reduced to •writing by a disinterested party, are made applicable to depositions taken under a commission from a court of the United States. I think, however, that the mode of executing commissions out of this court is governed, not by the state statute, but by the 866th section of the Eevised etatutes of the United States, which provides that "in any case -where it is necessary, in order to prevent a failure or delay of justice, any of the courts of the United States may grant a dedimus potestatem to take depositions according to common usage," This matter being expressly provided for by act of Congress, the state practice relating to the same matter is not adopted by Eevised Stat- utes, § 914. Beardsley y. Little, 14 Blatchf. 102. �The question, therefore, is whether, in case of a deposition taken under a commission "according to common usage," it is a fatal objection that the attomey for one of the parties to the action writes down the, answers for the commissioner, the other party to the suit not being represented. . I think such a practice, if allowed, might lead to great abuses. A very slight tum of expression given to an answer.and such as might escape the notice of the -witness or the magistrate, would, in some cases, materially alter the sense. Nor -would it be possible, ordinarily, for the party not represented at the taking of the testimony to show that in the particular case he was injured or prejudiced. The statute of New York which forbids the practice is certainly wise, and calculated to protect the admin- istration of the law, in this particular, against abuses. �The statutes of some of the states required the witness to be examined by the commissioner separately and apart from ail other persons. In this case it is not claimed that there is any evidence that the defendant was in fact preju- diced or injured by what was done, and it appears by affida- vit that the testimony was taken as it was at the special request of the consul; that the consul, who was present ail the time, was old and feeble, and not well able to write the answers down himself. I think the practice, however, must be eondemned as improper and dangerous, without regard to ����