Page:Federal Reporter, 1st Series, Volume 9.djvu/771

 756 FEDERAL REPORTER. �In Moulson v. Hargrave, 1 S. & E. 201, unsigned depositions -were received, and the court stated that it had been decided by that court, and also by the circuit court of the United States for that dis- trict, that the signatures of witnesses were not necessary. But, in sueh cases, the testimony is taken by the examiner, a sworn officer of the court, and its correctness is authenticated by him. See, also, Mobley t. Hamit, 1 A. K. Marsh. 59U ; Butherford v. Nelson, 1 Hayw. 105; Wiggins v. Pryor, 3 Porter, 430. �The practice in the English chancery was settled by the early case of Copeland y.Stanton, 1 P. Wms. 414, where the depositions unsigned, because of the sudden death of the witness, were not admitted, for the reason, as the court say, that "the witness was at liberty to amend or alter anything, after which he signa them, and then, but not before, the examinations are complete and good evidence." See Smith, Ch. Pr. 519. If the direct examination is signed, and thus complete, so far as it goes, the loss of opportunity to cross-examine the witness, by his death or other inevitable accident, is not suificient to exclude the deposition, and it maybe received for what it is worth. Nolan V. Shannon, 1 Molloy, 157; Arundel v. Arundel, 1 Chan. 90; Gass V. Stinson, 3 Sumn. 98. �The rule requiring depositions to be read to the witness and sub- scribed by him, adopted by general order No. 10, which was also a statutory requirement in the chancery practice of this state, (2 Eev. St. *181, § 89,) was manifestly intended to secure accuracy and prevent mistakes and abuses in testimony taken ont of court. It is not necessary to hold that in every case whatsoever, and without regard to circumstanoes, each of the directions of rule 10 must be inflexibly complied with. The rule does not declare that the testi- mony shall be rejected in case of a defect in any one of the pre- scribed particulars, and circumstances may arise where the literal enforcement of the rule would defeat its real purpose. But the rule must be enforced wherever the failure to procure the signature bas arisen from any laches on the part of the parties calling the witness, and when the ordinary guaranties of the correctness of the testimony are wanting. In this case none of those guaranties are supplied. The testimony was not taken by the register or by any officer of the court, nor, bo far as appears, by any person acting under him. It has not been seen or read by the witness, and its correctness is not certified by the register, and, from the circumstances of the case, necessarily cannot be so certified by him. In legal effect it is nothing more than what the stenographer by his affidavit swears he heard the ��� �