eously admitted to the jury is to correct the error, when withdrawn before the trial closes. Armour & Co. v. Kollmeyer, 16 L.R.A.(N.S.) 1110, 88 C. C. A. 242, 161 Fed. 78; Turner v. American Security & T. Co. 213 U. S. 267, 53 L. ed. 792, 29 Sup. Ct. Rep. 420, and cases cited; Throckmorton v. Holt, 180 U. S. 552, 45 L. ed. 663, 21 Sup. Ct. Rep. 474; Ware v. Pearsons, 98 C. C. A. 364, 173 Fed. 879. The exception to the rule has been stated as follows: Where the evidence so admitted has been so impressive that in the opinion of the Appellate court its effect was not removed from the minds of the jury by its withdrawal, a new trial should be granted. Armour & Co. v. Kollmeyer, 16 L.R.A. (N.S.) 1110, 88 C. C. A. 242, 161 Fed. 78; and cases cited above; Waldron v. Waldron, 156 U. S. 361, 381– 383, 39 L. ed. 453, 458, 459, 459, 15 Sup. Ct. Rep. 383.

Again, evidence erroneously admitted is not prejudicial where it is in line with other evidence which is competent and sufficient. Smith v. Au Gres Twp. 9 L.R.A. (N.S.) 876, 80 C. C. A. 145, 150 Fed. 258; Crichfield v. Julia, 77 C. C. A. 297, 147 Fed. 65.

Exceptions to Evidence.

See Bill of Exceptions.

CHAPTER XIII.

DEPOSITIONS ON THE LAW SIDE DE BENE ESSE.

We have seen that the mode of proof on the law side must be by oral examination in open court, except under conditions when depositions are permitted. U. S. Rev. Stat. sec. 861, U. S. Comp. Stat. 1901, p. 661. By section 863 depositions de bene esse may issue in trials on the law side when the witness lives at a greater distance from the place of trial than 100 miles, or is bound on a sea voyage, or is about to go out of the United States, or out of the district in which the case is to be tried, and a greater distance than 100 miles from the place of trial, before the time of trial; or when he is ancient and infirm. If one of these conditions do not exist, the witness cannot be examined in advance of the trial. Simkins, Federal Equity Suit, 2d ed. p. 530; Blood v. Morrin, 140 Fed. 918; Shellabarger v. Oliver, 64 Fed. 306; Frost v. Barber, 173 Fed. 848; Bird v. Halsy, 87 Fed. 676, 677; Lowrey v. Kusworn, 66 Fed. 539; Zych v. American Car & Foundry Co. 127 Fed. 724; Henning v. Boyle, 112 Fed. 397; Hartman v. Feenaughty, 139 Fed. 888; Importers' & T. Nat. Bank v. Lyons, 134 Fed. 510; Diamond Coal & Coke Co. v. Allen, 71 C. C. A. 107, 137 Fed. 705, 706; National CashRegister Co. v. Leland, 77 Fed. 242.

When Section 863 Does Not Apply.

It seems the rule does not apply when depositions are taken in answer to a rule to show cause, where the facts are disputed. Importers' & T. Nat. Bank v. Lyons, 134 Fed. 512. By section 866, U. S. Rev. Stat., U. S. Comp. Stat. 1901, p. 663, it is provided for taking depositions under a dedimus potestatem and in perpetuam, in any case where it is necessary in order to prevent a failure or delay of justice, and any of the courts of the United States may grant a dedimus to take depositions according to "common usage;" and any circuit court may on application to it as a court of equity direct depositions in perpetuam rei

memoriam, if they relate to any matters that may be cognizable in any court of the United States; and in such cases the provisions of section 863 set forth above do not apply.

Depositions de bene esse do not apply to foreign witnesses. Compania Azucarera Cubana v. Ingraham, 180 Fed. 516; The Alexandra, 104 Fed. 907.

By section 867, U. S. Rev. Stat., any court of the United States may admit in its discretion any disposition taken in perpetuam, etc., which would be so admissible in a court of a State wherein such cause is pending, according to the laws thereof. Ohio Coffee Co. v. Hutchings, 96 C. C. A. 653, 172 Fed. 202. See Simkins, Federal Equity Suit, 2d ed. pp. 522, 523, for discussion of these sections-also Id. pp. 533, et seq. "Common usage" means written interrogatories, and since 1892 includes State methods. Compania Azucarera Cubana v. Ingraham, 180 Fed. 517.

Effect of Taking De Bene Esse.

De bene esse means provisionally, and when thus permitted, it is with the intent that the depositions are to be used, provided the witness cannot be put upon the stand at the trial. Whitford v. Clark County, 119 U. S. 524, 30 L. ed. 500, 7 Sup. Ct. Rep. 306; Texas & P. R. Co. v. Watson, 50 C. C. A. 230, 112 Fed. 402; Texas & P. R. Co. v. Reagan, 55 C. C. A. 427, 118 Fed. 815. By section 865 it is provided that unless the court is satisfied that when the deposition is offered, that the witness is dead, or gone out of the United States or to a greater distance than 100 miles from the place of trial, or by reason of age, sickness, or bodily infirmity the witness is unable to appear, the deposition cannot be read.

Manner of Taking De Bene Esse.

By U. S. Rev. Stat. sec. 864, it is provided that the witness being sworn to testify the whole truth, his testimony shall be reduced to writing or type written by the magistrate taking the deposition, or by some person under his personal supervision, or by himself in the magistrate's presence, and by no other per

son, and after being reduced to writing shall be subscribed by the deponent. U. S. Comp. Stat. 1901, p. 663. The deposition can be taken at any place where the witness is found and served with the subpoena. Mutual Ben. L. Ins. Co. v. Robison, 22 L.R.A. 325, 7 C. C. A. 444, 19 U. S. App. 266, 58 Fed. 732, Blood v. Morrin, 140 Fed. 918; United States v. Standard Sanitary Mfg. Co. 187 Fed. 234. As to notice of taking and form, service of notice, taking by interrogatories or orally, see Simkins, Federal Equity Suit, 2d ed. pp. 523–529.

Before Whom Taken.

Section 863 provides that it may be taken before any judge of any court of the United States, or any commission of the (circuit) district court, or any clerk of the district court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States or any notary public not being attorney or counsel to either of the parties nor interested in the event of the cause.

Certificate of the Officer Taking.

The certificate of the officer is indicated in sec. 865, U. S. Rev. Stat., but where the deposition is taken in a law case, the certificate must show the reason for taking the deposition at law; as, for instance, "he was about to leave the country" (Bird v. Halsy, 87 Fed. 677), otherwise the certificate as given in Simkins, Federal Equity Suit, 2d ed. p. 527, can be used.

Return of the Deposition When Taken to the Court.

Rev. Stat. sec. 865, U. S. Comp. Stat. 1901, p. 663, requires the deposition to be transmitted personally by the officer, and to be delivered with his own hand in the court for which it is taken, or it shall, together with a certificate of the reasons for taking it, and of the notice, if any, given to the adverse party, be by the officer taking sealed up and directed to such court, and remain under his seal until opened in court.

It seems from the statute that the certificate stating the reasons for taking will not be required when the officer delivers the deposition into court with his own hands. To prevent any appearance of tampering with the depositions the sealing and other requirements for mailing must be strictly pursued. (See Simkins, Federal Equity Suit, 2d ed. p. 559.)

Manner of Taking Under a Dedimus Potestatem.

For procedure and forms, see Simkins, Federal Equity Suit, 2d ed. pp. 532-538; U. S. Rev. Stat. secs. 868-870, U. S. Comp. Stat. 1901, pp. 664, 665.

Mode Prescribed by State Laws.

By act of March 9, 1892, 27 Stat. at L. 7, chap. 14, U. S. Comp. Stat. 1901, p. 664, it is provided that depositions in suits at law may be taken in the mode prescribed by State laws in which the courts are held. See Simkins, Federal Equity Suit, 2d ed. pp. 530, 531. This section has been frequently construed, and certain rules may be evolved from the decisions as follows: First. The State statutes do not affect the causes or ground for taking the depositions on the law side. United States v. Fifty Boxes & Packages of Lace, 92 Fed. 601. It simplifies the practice without enlarging the conditions. Hanks Dental Asso. v. International Tooth Crown Co. 194 U. S. 309, 48 L. ed. 991, 24 Sup. Ct. Rep. 700, and cases cited; Texas & P. R. Co. v. Wilder, 35 C. C. A. 105, 92 Fed. 957; National Cash-Register Co. v. Leland, 77 Fed. 242, same case 37 C. C. A. 372, 94 Fed. 502; Despeaux v. Pennsylvania R. Co. 81 Fed. 897.

Second. Depositions of a witness living within 100 miles of the place of trial cannot be read in evidence, and the distance is to be determined by taking the usual, ordinary, and shortest route of public travel (Jennings v. Menaugh, 118 Fed. 612, and authorities cited), unless the witness was aged and infirm or the other conditions provided in section 863, U. S. Rev. Stat., existed.