
    Beale v. Thompson and Morris. 
    
    
      Deposition de bene esse.
    
    It is a fatal objection- to a deposition taken under the judiciary act of 1789 § 30, that it was opened out of court.
    Error to the Circuit Court for the district of Columbia.
    On the trial in the court below, the defendant, Beale, offered in evidence, the deposition of Tunis Craven, taken before the judge of the district court of the United States for the district of New Hampshire, under the 30th section of the judiciary act of September 24th, 1789 (1 U. S. Stat. 88), which, after prescribing the mode of taking ^'depositions, directs that “the depositions so taken shall be retained by such magistrate, until he L deliver the same, with his own hand, into the court for which they are taken ; or shall, together with a certificate of the reasons aforesaid of their being taken, and of the notice, if any, given to the adverse party, be, by him, the said magistrate, sealed up and directed to such court, and remain under his seal, until opened in court.”
    
      The deposition was sealed up by the judge, but directed to the clerk of the court, and he, supposing it to be a letter respecting his official business, opened it out of court. The court below rejected the deposition ; which being stated in a bill of exceptions, the defendant, Beale, brought his writ of error.
    The question respecting the informality of opening the deposition out of court, was not argued in this court, there being another objection to it, which the counsel deemed more important, viz., that the deponent was the maker of the note upon which the suit was brought against the defendant, Beale, as indorser ; the purport of the deposition being to show that Beale had not due notice of the non-payment of the note by the deponent.
    
      Law and Jones, for the plaintiff in error: Morsell, for the defendants in error.
    February 23d, 1814.
    
      
       February 18th, 1814. Absent, Washington and Johnson, Justices.
    
   Story, J.,

delivered the opinion of the court, as follows : — The single point in this case is, whether the circuit court of the district of Columbia, erred in rejecting the deposition of Tunis Craven?

Independent of all other grounds, the court are of opinion, that the fact of the deposition’s not having been opened in court, is a fatal objection. The statute of 24th September 1789, ch. 20, § 80, is express on this head. The judgment of the circuit court must be affirmed.

Judgment affirmed.  