Jones v. Neale

It appears to be the true construction of the act of congress that those circumstances which will warrant the taking of a deposition de bene esse should, if they exist at the time of trial, authorize the reading of it. But as this act is made in derogation of the common law, it must be strictly construed and literally observed. To fail in one iota-of the ceremonies prescribed by it is to fail in the whole. The act requires that the deposition shall be retained by the magistrate taking it until he delivers the same with his own hands into the court for which it is taken, or [shall, together with the reasons of its being taken, and of notice, etc.] 2 be by him sealed up and directed to such court. This part of the act has not been observed, therefore the deposition cannot be read. Footnotes [2] [From 2 Mart. (N. C.) 81.] .