Case No. 963

BANKS v. MILLER.

[I Cranch, C. C. 543.]¹

Circuit Court, District of Columbia.

June Term, 1809.

DEPOSITION—RESIDENCE OF ADVERSE PARTY—PRODUCTION OF BOOKS AND PAPERS.

1. It is a sufficient averment of the residence of the adverse party, by the magistrate who takes a deposition under the act of congress, if he certifies that it appears to him that the party resides more than one hundred miles from the place of caption.

2. If books and papers are in court they may be called for after the jury is sworn.

[Cited in Wallar v. Stewart, Case No. 17,109.]

[See Merrill v. Dawson, Case No. 9,409; Edmonston v. Barrel, Id. 4,284: Patapsco Ins. Co. v. Southgate, 5 Pet. (30 U. S.) 604.]

A deposition, taken under the act of congress, was offered in evidence by the defendant The magistrate who took it, certified that it appeared to him that the adverse party and his counsel resided at the city of Washington, upwards of one hundred miles from the place of taking the said deposition.

Mr. Caldwell, for the plaintiff, objected, that it was not a positive averment that the adverse party and his attorney were at the time more than one hundred miles, &c.

But THE COURT (DUCKETT, Circuit Judge, absent) overruled the objection.

After the jury was sworn, the defendant called on the plaintiff to produce his books of account, which were then on the table.

THE COURT thought it due notice, as the books were in court.

¹ [Reported by Hon. William Cranch, Chief Judge.]

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