WHITFORD

v.

CLARK COUNTY

Mr. Chief Justioe "Waite delivered the opinion of the court.

In this case the trial was by the court, a jury having been waived. The record presents a special finding of facts and certain exceptions to the rulings of the court on the admissibility of testimony. Upon the facts as found we should have had no hesitation in affirming the judgment, but in the rulings excepted to there was error. As part of the evidence on which the findings were made, the court, against the objections of Whitford, the plaintiff in error, allowed a deposition of N. T. Cherry, taken de lene esse under § 863 of the Revised Statutes, to be read, when it was made to appear before the reading that the witness was himself actually present in court, ready and able to testify in the case if called. From the opinion filed on the decision of a motion for a new trial, Whitford v. Clark County, 13 Fed. Rep. 837, it appears that the court held the rule on this point “ to be that when a deposition in a civil action has been duly taken, because the witness resides more than one hundred miles distant, said deposition is admissible, subject, however, to the right of the adverse party to place him on the witness stand if present. Such is understood to be the.true rule, although decided cases are not fully in .accord.’*’ But by § 865 of the Bevised Statutes it is expressly provided, that, “ unless it appears to the satisfaction óf the court that the witness-is.then dead, or gone out of the United States, or to a greater distance than one hundred miles from the place where the court is sitting, or that, by reason of age, sickness, bodily infirmity, or imprisonment, he is unable to travel and appear at court, such deposition shall not be used in the canse.” This was first enacted in the judiciary act of September 24, 1789, c. 20, § 30, 1 Stat. 90, and it has been in force from that time until now. In Patapsco Ins. Co. v. Southgate, 5 Pet. 604, 617, it was said, in reference to this provision, that-“the act declares expressly that, unless the same (that is,- the disability) shall be made to appear on the trial, such deposition shall not be admitted or used in the cause. This inhibition does not extend to the deposition of a witness living at a greater distance from the place of trial than one ’hundred miles; he being considered permanently beyond.a compulsory attendance. The deposition in such case may not always be absolute, for the party against whom it is to be used may prove that the witness has removed within the reach a 'subpoena after the deposition was taken ; and if that fact was known to the party, he would be bound to procure >his personal attendance. The onus, however, of proving this would rest upon the party opposing the admission of the dep-in evidence. It-is, therefore, a deposition taken de dene esse.” And in The Samuel, 1 Wheat. 9, 15, Chief Justice Marshall said, a deposition taken under the statute de dene esse “ can be read only when the witness himself is unattainable.” See also Harris v. Wall, 7 How. 692, and Rutherford v. Geddes, 4 Wall. 220, 224. It thus appears to have been established at a very early date that depositions taken de dene .’esse'could nót be used in any case at the trial if the presence of the witness' himself was actually attainable, and the party offering the deposition knew it, or ought to have known it. If the witness lives more than one hundred miles from the place of trial, no subpoena need be issued to secure his compulsory attendance. ; So, too, if he lived more than one hundred miles away, when Ms 'deposition was taken, it will be presumed, that he continued to..live there at the time oh the trial, and no further proof on that subject need be furnished by the party offering the deposition, unless this presumption shall be overcome by proof from the other side. ' But if if be overcome, and the party has knowledge of his power to get the witness in .time to .enable Mm to secure an attendance at the trial, he must do so, and the deposition will be excluded. Such ivas this case. "While the witness lived more than one hundred miles from the place -of trial when Ms deposition was taken, hé. was actually in court, ready and able to testify when Ms testimony was needed at the trial. His deposition, therefore, was not admissible. The-rulings of the circuit courts have uniformly been the same way, so-far as we knowi While some have '-gone beyond the decision m Patapsco Ins. Co. v. Southgate, none have fallen short of it. Lessee of Penns v. Ingraham, 2 Wash. C. C. 487, decided in 1811; Lessee of Brown v. Galloway, Pet. C. C. 291, 294, decided in 1816; Pettibone v. Derringer, 4 Wash. C. C. 215, 219, decided in 1818; Russell v. Ashley, Hemp. 546, 549; Ward v. Armstrong, 6 McLean, 44.

.As to depositions taken under a dedimus potestatem in accordance with § 866 of the Bevised Statutes, this provision' of' § 865 does not apply, for it is expressly so-, enacted m that section. .' Wb.en the statutes of the United States make special provisions as to the competency or. admissibility of testimony, they must be 'followed in the courts of the United States, and not -the laws or the practice of the State in which the cpurt is held when they are different. Potter v. National Bank, 102 U. S. 163, 165; King v. Worthington, 104 U. S. 44, 50; Bradley v. United States, 104 U. S. 442; Ex parte Fisk, 113 U. S. 713, 721.

The judgment is reversed, a/nd the cause rema/nded, with di-.-rections for a new 1/rial.