Page:Federal Reporter, 1st Series, Volume 7.djvu/61

 EGBEST V. CITIZBNS' INS. 00. OF MISSOURI. 4:9 �picion, especially if the party bas had time and opportunity �to take it in the regular way." That court gave the reason �which induced the act of 1789 in that respect, restated the �rule that depositions without notice were in derogation of the �common law, etc. There was a hint, at least, looking to the �distinction between depositions when taken with and when �taken without notice. The act of 1872 bas, to a large ex- �tent, cured the evil thus complained of. �These general remarks are here made, because it is not pro- �posed to review in detail the many authorities cited, or to �enter upon a discussion of each of the several grounds of the �pending motion. It must sufiSce to pass upon each seriatim. �It is objected to as folio ws : �(1) Because the caption of the depositions fails to state the names of all the parties to the suit ; that is, instead of naming each of the copart- ners plaintiffs, it followed the style of the case as given in the notice, and as docketed. �The strict rule laid down by the United States supreme �court with respect to transcripts of records to that court on �error or appeal, upon which judgment or decrees may follow, �it seems to us ought not be pushed to the extreme contended �for with respect to depositions, where all the parties had �notice and knew in what case the testimony was sought. �(2j Because the caption of said depositions f ailed to show any cause for taking sald depositions ; that is, it does not state that San Francisco, in California, is more than 100 ttiiles distant from St. Louis. �It wUl be observed from the statement of the case that it originated in San Francisco, through the agents of the defend- ant, and the notice was to take the depositions there, and the respective parties knew as well as this court, judicially, that those cities are more than 100 miles distant. Why, then, sbould the notary be required to state what was apparent and known to all concemed. The act of congress gives the dis- tance as good cause for taking such depositions. �(3) Because the offlcer before whom said depositions were taken fails to certify that he dellvered them to the court in which said cause is pend- ing, or tiat he sealed them up and deposited them in the post-office in San Francisco. �This objection is fully met by the fact that the envelope v.7,no.l — 4 ��� �