Page:Federal Reporter, 1st Series, Volume 4.djvu/730

 7l■^5 FEDERAL REPORTER. �what may be sliown in the particular case, and on thia ground the deposition must be suppressed, although there is no sug- gestion of intended impropriety or actual prejudice to the defendant in this case. The learned counsel for the plaintiff bas cited two cases, in which this objection appears not to haye been sustained, as authority for the proposition that a commission so executed is executed " according to common usage," as that expression was understood at the time of the passage of the judiciary act of 1789, from -which Eev. St. § 866, was taken. 1 St. 85, § 30; Nichols v. White, 1 Cr. C. G. 58; Atldnson v. Glenn, 4 Cr. C. G. 134. These precedents may account for, and may bave been supposed to justify, the course that was taken in this case, as they are decisions by a cour^of undoubted authority. �; But in, neither of these cases does it certainly appear that the party making the objection was not represented by his counsel upon the taking of the testimony. If he was, the objeption might well have been considered waived, if not taken ,at the tirpe. If, however, it was otherwise, and the cases, were like the present, yet a practice, which at one time çaay appear to the courts harmless, may, at a different period and in a different state of things, be seen to involve such pos- sibility of abuse that it should not be permitted. The large incre^se, in modern times, in the number of attorneys, and their less intimate relations with the courts, have effected such, changes as may well alter rules of practice in a matter such as this; and, of course, if the practice is permitted in the case pf any attorney, it must be permitted in the case of ail. ,, And, while the term "according to common usage" is to be construed as referring to what was, at the time the act of 1789 was passed, understood to be "common usage," yet, in a matter afïecting the purity of the administration of justice, the courts are at liberty, from time to time, so to control the execution of their own processes and mandates as to repres,3 or prevent a practice which they shall see is capable of introducing abuses. This is, and always was, "according to common usage;" and an application to suppress a deposi- ����