allowed on trial in case of death, absence, &c. nevertheless is sue Such testimony court, (d) but not otherwise. And unless the same shall be made to appear on the trial of any cause, with respect to witnesses whose depositions may have been taken therein, such depositions shall not be admitted or used in the cause: Provided, That nothing herein Dedimus may shall be construed to prevent any court of the United States from according granting a dedimus potestatem, to take depositions according to common usage, when it may be necessary to prevent a failure or Depositions in delay of justice; (e) which power they shall severally possess; nor perpetuam rei to extend to depositions taken in perpetuam rei memoriam, which, if they relate to matters that may be cognizable in any court of the United States, a circuit court, on application thereto made as a court of equity, may, according to the usages in chancery, direct to be taken. to usage. memoriam,&c 1802. In suits in AN ACT to amend the Judicial System of the United States: Passed April 20, 1802.-Ingersoll's Digest, 398. SEC. 25. In all suits in equity, it shall be in the discretion of the equity, court on court, upon the request of either party, to order the testimony of the request, may witnesses therein to be taken by depositions; which depositions shall be taken in conformity to the regulations prescribed by law for the courts of the highest original jurisdiction in equity, in cases of a similar nature, in that state in which the court of the United States may be holden: Provided, however, That nothing herein contained shall extend to the circuit courts, which may be holden in those states in which testimony in chancery is not taken by deposition. order the testimony of witnesses to be taken by deposition, &c. Proviso. (d) That the deponent is a seaman on board a gun-boat in harbor, and liable to be ordered to some other place, and not to be able to attend the court at the time of its sitting, is not a sufficient reason for taking his deposition de bene esse under the above act.—Samuel, 1 Wheat. 9. 2. The provision in the above act as to taking depositions de bene esse, does not apply to cases pending in the supreme court, but only to cases in the circuit and district courts. Testimony by depositions can be regularly taken for the supreme court, only under a commission issuing according to its rules.-Argo, 2 Wheat. 287. 3 In all cases where a deposition is taken de bene esse, except where a witness lives more than one hundred miles from the place of trial, it is incumbent on the party to show that the disability of the witness to attend still continues.-This rule does not extend to a witness living beyoud one hundred miles from the place of trial, as he is considered beyond a compulsory attendance.Patapsco Insurance Co. v. Southgate, &c. 5 Peters, 604. (e) Depositions taken according to the abore proviso, under a dedimus potestatem, are under no circumstances to be considered as taken de benc esse, whether the witnesses reside beyond the process of the court, or within it; the provisions of the act relative to depositions de bene esse, being confined to those taken under the enacting part of the section.-Sergeant's Lessee v. Biddle, &c. 4 Wheat. 508. 557 1812. AN ACT for the more convenient taking of Affidavits and Bail, &c: Passed SEC. 3. In any cause before a court of the United States, it shall be lawful for such court, in its discretion, to admit in evidence any deposition taken in perpetuam rei memoriam, which would be so admissible in a court of the state wherein such cause is pending, according to the laws thereof. Form for taking Depositions in the Courts of the United States, under the act of Congress; prepared by the Hon. T. B. Monroe, and published in his 2d volume of Reports, p. 159. Here insert the name of the magistrate before whom the deposition is taken, who may be "any justice or judge of any of the courts of the United States," "any chancellor, justice or judge of any supreme or superior court, mayor or chief magistrate of a city, or judge of a county court, or court of common pleas of any of the United States," adding his official character as "one of the judges of the county court of in the Cowmonwealth of Kentucky, on the · county, day of Insert the name of the house and town where the deposition is taken. "in the county aforesaid, to be read as evidence in a certain suit depending in the". Insert the style of the court, as “Circuit Court of the United States for the Seventh Circuit and Kentucky District,” or "District Court of the United States, for the Kentncky District, holden in Frankfort, wherein is plaintiff, (or complainant,) and is defendant." "The said deponent being first carefully examined and cautioned, and sworn," say," or "affirmed, to tell the whole truth, doth depose and Here insert one or the other of the following clauses, as the fact may be: "that he lives a greater distance from the said town of Frankfort than one hundred miles,” or "that he is bound on a voyage to sea, and expects to depart before the time of the trial," or "that he is about to go out of the United Stites, and he ex pects before the time of the trial,” "that he is about to go out of the State of Kentucky, and to a greater distance than one hundred miles from Frankfort, and he expects before the trial of the said case," or A court in the U.S. may admit in evidence any deposition taken in perpetu am, &c. 558 "that he is ancient, being years old" "that he is very infirm." or "Furthermore he saith," Here set down the body of the deposition, in which the witness is bound to state every thing he knows, touching the controversy, whether interrogated or not. the conclusion of his statement, the witness must subscribe his name. At Immediately after the deponent's signature, follows the magistrate's certificate. "I, Here insert again the name of the magistrate, adding a full description of his official character, as "one of the justices of the peace of the Commonwealth of Kentucky, in and for the county of -, duly commissioned, sworn and acting as such, and by law and by virtue of my said commission, one of the judges of the county court of said county, and acting as such, do certify, that at the request of the said" Insert plaintiff or defendant, as the fact may be. "I caused the above named , deponent in the foregoing deposition, to come before me, at the time and place in the caption stated, because the said witness". Here insert one or the other of the following clauses, corresponding to the statement of the witness, in the first part of the deposition, and to the fact of the case: -"resides a greater distance than one hundred miles from Frankfort, the place of holding the said court of the United States, as is stated," or-"is bound on a voyage to sea, and to depart before the time for the trial of the cause, as is represented,". -or—“is about to go out of the United States, and expects to depart before time of trial, as he states," -or- "is about to go out of the district of Kentucky, to a greater distance than one hundred miles from Frankfort, where said court is holden, and expects to go before the time of the trial of said cause, as he represents," "is ancient, as he has stated, and as it appeareth to me," -or "is very infirm, as he has stated and I believe, I did❞——— -0 Here insert one or the other of the following clauses, as the fact may be: -"not cause any notice to be given to the adverse party of the time of taking this deposition; because the said adverse party does not, as I know or believe, reside within one hundred miles of the place of taking the same, nor has said party any agent or attorney, known to me, within that distance,"cause a notification to be given to". ·or Here insert the name of the adverse party, his agent or attorney, to whom the magistrate must cause a notice to be given, if within one hundred miles of the place of taking the deposition, allowing him time for attendance after notified, not less than at the rate of one day (Sundays exclusive) for every twenty miles travel. "of the time and place of the taking of this deposition, to be present, and to put interrogatories; a copy of which notification, with the affidavit of the service thereof, is hereunto attached; that the said witness was, by me, carefully examined, cautioned and sworn (or affirmed, as in the caption) then and there to testify the whole truth; that the said deposition was wholly reduced to writing by". Here insert one or the other of the two following clauses: -"me, in the presence of the said witness," "by the said deponent in my presence," then and there, in my presence, subscribed the same; that I am not counsel or attorney for either of the parties, or interested in the event of the cause. All which is certified to said court as the cause wherefore this deposition is taken, and for the manner it is done." ·or -"and that he The magistrate having signed the deposition, will seal it up with the notice, if any, and affidavit of its service, and direct it to "the Judges of the Court of the United States, Seventh Circuit, Kentucky District," or to "the Judge of the District Court of the United States, Kentucky District, Frankfort, Kentucky;" and will endorse on the letter, "Depositions between -, (stating the par ties,) not to be opened but in the presence of the court," 560 TITLE 61. DESCENTS. course of. 1785. IN FORCE FROM FIRST OF JANUARY, 1787. AN ACT directing the course of descents. (a)—12 Hening's Statutes at Large, 138. SEC. 1. Be it enacted by the General Assembly, That henceforth Descents, the when any person having title to any real estate of inheritance, shall die intestate as to such estate, it shall descend and pass in parcenery to his kindred male and female in the following course, that is to say: SEC. 2. To his children or their descendants, if any there be: SEC. 3. If there be no children nor their descendants, then to his father. SEC. 4. If there be no father, then to his mother, brothers and sisters, and their descendants, or such of them as there be. SEC. 5. If there be no mother, nor brother, nor sister, nor their descendants, then the inheritance shall be divided into two moieties, one of which shall go to the paternal, the other to the maternal kindred, in the following course, that is to say: SEC. 6. First to the grandfather: SEC. 7. If there be no grandfather, then to the grandmother, uncles and aunts on the same side, and their descendants, or such of them as there he: SEC. 8. If there be no grandmother, uncle nor aunt, nor their descendants, then to the great grandfathers, or great grandfather if there be but one. SEC. 9. If there be no great grandfather, then to the great grandmothers, or great grand mother if there be but one, and the brothers and sisters of the grandfathers and grandmothers, and their descendants, or such of them as there be: (a) By an act of 1798, it is declared that slaves shall descend as lands are directed to descend, in and by an act of the general assembly, entitled an act directing the course of descents." See the act, post. It is also declared by the 28th section of an act of 1797, (title Executors and Administrator, post,) that personal estate "shall be distributed in the same propor tions and to the same persons as lands are directed to descend, in and by an act of the general assembly, entitled an act directing the course of descents." The above act is the only one whose title corresponds with that quoted in the acts of 1797 and 1798.-Scroggin v. Allin, &c. 2 J. J. Mar. 467. |