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REPORT

OF THE

COMMITTEE ON JUDICIAL ADMINISTRATION.

TO THE PRESIDENT AND MEMBERS OF THE AMERICAN BAR ASSOCIATION:-At the meeting of the Association in 1878, the following resolution was adopted:

Resolved, That the Committee on Judicial Administration and Remedial Procedure be, and they are hereby instructed to inquire and report to the Association, at its next Annual Meeting, upon the present condition of the law, as well statutory as established by judicial decisions in the several states, touching the mode of taking testimony and of perpetuating testimony out of court, with special reference to the class of officers authorized to take such testimony, and the power confided to them, and the formalities required for the same; and to make such suggestions on the general subject as to them may seem expedient, with reference to the expediency of any action on the part of this Association in respect to same.

In consequence of the long continued sickness of the Chairman of the committee, Gustavus A. Somerby, Esq., of Boston, terminating in his death, no action was taken by the committee during that year; and although further time for the report was granted by the Association in the next two years, the difficulty of gathering the information which it requires has made it impracticable even yet to accomplish the object.

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In fact, the committee are under the impression that the work laid out for them by the resolution was larger than was intended or known by the Association. They have endeavored, however, to carry out the investigation to the fullest extent, by addressing a circular, in the first instance, to the Vice-Presidents in all the states which are represented in this Association, requesting them to assist by reporting the law and practice as to depositions in their respective states. This was deemed the surest method for obtaining late and authentic information.

At the first effort there was not a general response. By renewed application, the committee has been favored with reports from twenty-six of the states, none, they regret to say, having been received from Alabama, Colorado, Florida, Kansas, Louisiana, Minnesota, Nevada, North Carolina, Oregon, Tennessee, Texas, and Virginia.

To simplify the labor, the committee submitted to each of the Vice-Presidents a copy of the resolution adopted by the Association, together with the six following inquiries based upon it, to which they were invited to send a brief answer, presenting the statute or practice prevailing in their states respectively, upon each of these heads:

1. What modes of proceeding are allowed, whether by commission, or court or mere notice inter partes, or otherwise? 2. Especially, what officers or persons may execute such duties, and by whom or how designated for the occasion?

3. What power to compel witnesses to testify upon a commission or notice from another state or country, and to whom is it given?

4. Whether the examination must be upon interrogatories previously filed, or may it be oral; and must the names of the witnesses to be examined be communicated?

5. Who may be present, and what formalities must be observed in the examination? May the officer reject testimony offered? What are his powers generally?

6. To whom and how must the deposition be returned and publication made?

The answers to these inquiries have been collated under each of the foregoing heads, and in the same order as above presented; and the abstracts thus prepared, together with a seventh head relating to the statutory methods of “perpetuating testimony out of court," are presented in the form of an Appendix to this report.

The committee submit this Appendix for the information of such members as may wish to investigate the details, but will not venture to embrace it in their report.

The result shows, as probably must have been anticipated, a great diversity and multiplication of laws and practice in the various states, upon all the points suggested by the resolution. It would be impracticable to present them in any other form than that which we have used in the Appendix, and the committee trust to be excused if they have been guilty of some inaccuracies in reducing them to this form.

The general result of the reports made to the committee, pursuing the order of inquiries as stated, may be summed up thus:

First. In most of the states the mode of taking testimony out of court or by deposition is simply upon written notice between the parties, but with much variety as to the form and time of the notice required, and one or two material peculiarities in some of the states, which will be specially noticed.

In New Hampshire, Vermont, and Connecticut the notice has more formality, as it must be issued by a justice of peace or notary, somewhat as a citation.

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In Delaware, Maryland, Mississippi, and South Carolina it is still required that depositions shall be taken upon commission issuing out of court, according to the ancient practice, and other states adhere to the same method when depo

sitions are to be taken without the state. In New York and Pennsylvania, as well as in the United States courts, letters rogatory are reported as being still in use between their courts and those of foreign countries for mutual aid. Whether this depends upon statutory provision or can be regarded as within the power of common law courts without such sanction is not settled. (Greenleaf, Er., sec. 320.)

Second. In respect to the class of officers authorized to take testimony by deposition, a matter regulated by statute in all the states, their range and variety is very wide, and we must necessarily refer to the second part of the Appendix for these differences. In not a few states it will be seen that this power is extended to any officer who is authorized to administer oaths. In most of the states it is common to any judge, justice of the peace, notary public, and mayor or chief magistrate of any city or town. In some states the clerk of a court and master commissioners are interspersed. In two or three states it will be seen that official examiners are appointed expressly for this work.

Where depositions are taken upon commission, the office is of course generally given to commissioners named; but in some states the commission is open, and may be executed by any of the classes of officers authorized to act upon the ordinary form by notice.

Third. With respect to the powers confided to officers authorized to take depositions, the committee have thought it worth while to make a special inquiry, under this head, as to the power to compel witnesses to testify upon a notice or commission issuing from another state or country, and under what circumstances or to whom this power is granted; and it will be found that in most of the states provision is made, in some form or other, for its exercise under a notice or commission from the other states, and that in many cases it is extended by comity in favor of foreign states. In three or

four states it applies also in aid of criminal as well as civil proceedings pending in other states or governments. On this point it is to be regretted that the reports have not been fuller, though not specially called for by the resolution of the Association.

Delaware, Illinois, Indiana, Nebraska, and South Carolina are the only states, apparently, in which no provision exists other than the general power of the courts, if such there be, for enforcing attendance and testimony by a witness upon proceedings pending in another state; whilst Iowa, on the other hand, seems to be the only state in which false swearing, in such cases, has expressly been made perjury. Whether, in the absence of such law-or at any rate of a law making it compulsory upon the witness to testify in a suit or proceedings pending in another state or countryperjury will lie for false swearing, was questioned in Caillard 8. Vaughan, 1 Brod. and Bing., cited in Greenleaf, Ev., sec. 324.

Fourth. As to formalities, and whether the examination of witnesses, taken by deposition, shall be oral and open, or close and confined to interrogatories in writing previously filed, according to the old practice in chancery; or whether, if verbal, the interrogatories must be set forth in the deposition, is left very much at large, and varies chiefly according as the method happens to be by commission or mere notice. In many states, however, where the commission is still in use, the interrogatories are not required to be filed in advance, and in some of them the practice seems to admit of a mere narrative by the witness, without entering the interrogatories to which it is in fact responsive; and in many, if not most of the states, it appears that the examination may be conducted by the attorney directly, as in court, the officer acting merely as the amanuensis, and without much formality of any sort. But in some states it is expressly required that

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