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requisitions of the law must, therefore, appear upon the certificate to have been complied with before such testimony is admissible, pp. 704, 705.

Depositions. - The conditions under which a party is permitted, and a magistrate authorized, to take depositions under the thirtieth section of the judiciary act are, first, that the witness lives at a greater distance from the place of trial than 100 miles; second, or is bound on a voyage to sea; third, or is about to go out of the United States; fourth, or out of such district to a greater distance from the place of trial than 100 miles, before the time of trial; fifth, or is ancient or very infirm, p. 704.

Cited and followed in Texas, etc., Ry. v. Wilder, 92 Fed. 958, refusing to allow deposition to be read or removed to Federal court if witness could have been procured in State court.

Distinguished in Bird v. Halsey, 87 Fed. 677, holding provisions of statute have no application to foreign depositions.

Depositions must be accompanied by certificate of magistrate showing reasons of their being taken, and of the notice, if any, given to the opposite party, p. 704.

Cited and followed in In re Thomas, 35 Fed. 823, holding typewritten narrative deposition should be suppressed where certificate fails to show in whose writing it was; Patterson v. Fagan, 38 Mo. 80, holding where certificate does not show statutory notice it cannot be read; United States v. Julian, 162 U. S. 325, 40 L. 985, 16 S. Ct. 801, cited and holding the jurat is not the certificate, and the commissioner is entitled to separate fee therefor.

Depositions to be entitled to be read must, at the time of trial be accompanied by showing, - first, either the witness is dead; second, or gone out of the United States; third, or to a greater distance than 100 miles from the place where the court is sitting; fourth, or that, by reason of age, sickness, or bodily infirmity, he is unable to travel and appear at court, p. 704.

Distinguished in Whitford v. Clark Co., 119 U. S. 524, 30 L. 500, 7 S. Ct. 307, presuming a witness residing more than 100 miles away continues to live at the same place.

Estoppel.- When parties, with a full knowledge of the contents of a deposition, agree that it shall be read to the jury, they have no right to complain of the court for not excluding from the consideration of the jury the very matter which they have agreed should be read to them; but the presence of the adverse party by his attorney, who declined to take any part in the proceedings, cannot amount to a waiver to an objection to the want of authority apparent on the face of the certificate, p. 705.

Cited and followed in Williams v. Banks, 5 Md. 202, holding presVOL. IV - 47

ence of adverse party by counsel may waive irregularity as to time of taking.

If defendant plead several pleas in bar, either of which is a de fense to the whole action, and one be found in his favor, he is entitled to judgment, p. 705.

Appeal and error.- Where the record does not show any judgment on demurrer, and the judgment upon the whole case appears sufficient, it is presumed that the demurrer has been disposed of, р. 705.

Cited and followed in Townsend v. Jemison, 7 How. 719, 12 L. 886, presuming a demurrer was withdrawn when not shown upon the record to have been passed upon.

7 How. 706-725, 12 L. 880, TOWNSEND V. JEMISON.

Practice.- Where several pleas are filed, and some terminate in a demurrer and others in an issue to the jury, they should all, as a general rule, unless waived or withdrawn, be in some way disposed of by the court, p. 715.

Practice.- An issue of law should be heard and decided before an issue of fact, where both exist; if the latter is tried first, it must be presumed that the issue of law has been waived, pp. 715, 717, 718.

Cited and followed in Morsell v. Hall, 13 How. 215, 14 L. 118, holding refusal or omission to join issue on demurrer a waiver of plea demurred to.

Pleading and practice. - While the defense under the statute of frauds may be set up by a special plea, objections to evidence may be made under it upon trial of the general issue, and a ruling on such objections is as effective as judgment on a special plea, p. 716.

Practice.- Where one material issue is decided going to the whole declaration, it is of no consequence how an immaterial issue going to only part of it is found, if no injury be done by it to either party, pp. 717, 722.

Cited and followed in Bond v. Dustin, 112 U. S. 609, 28 L. 837, 5 S. Ct. 299, declaring statutory provision that verdict on several accounts will not be disturbed if one is good; Wade v. Doyle, 17 Fla. 527, holding on demurrer to replication to several pleas, one good plea supports judgment.

Appeal and error.- One cannot be allowed to take advantage of his own wrong or inattention, nor may parties lie by and not take exceptions and afterwards reverse judgments for omissions which, if noticed at the time, would have been corrected, pp. 718, 721, 722.

Trial - Presumptions. It is presumed that justice is administored in its ordinary form, hence that an issue of law has been dis

posed of in some manner prior to a trial upon the merits, pp. 718, 719, 720.

Cited and followed in Sturges v. Carter, 114 U. S. 523, 29 L. 244, 5 S. Ct. 1020, presuming judgment of Circuit Court correct unless contrary is shown; Fowler v. Equitable Trust Co., 141 U. S. 394, 35 L. 788, 12 S. Ct. 2, presuming facts existed justifying action of lower court; Hazen v. Reed, 30 Mich. 332, presuming regularity of proceedings in foreclosure suit.

Appeal and error.- The thirty-second section of the judiciary act forbids a reversal of the judgment on account of the omission of the clerk to keep a formal record, p. 720.

Cited and followed in Aurora City v. West, 7 Wall. 94, 19 L. 46, holding rule that judgment will be given against party who commits first fault, does not apply to fault of form.

Pleading and practice.-- Where plea was bad, and demurrer was to a replication to this bad plea, the first fault in pleading was committed by the defendant, and judgment against him is proper, pp. 722, 723.

Distinguished in Aurora City v. West, 7 Wall. 94, 19 L. 46, holding rule that judgment will be given against party who commits first fault, does not apply to fault of form.

Statute of frauds.- Where J. took up note of T., given for the benefit of another, the suit was one for money advanced, and was not barred by the statute of frauds on the theory that it was paid for the benefit of the stranger, pp. 722, 723.

Appeal and error.- Where a reversal will be of no benefit to the appellant, because the same judgment must be entered on retrial, the original judgment will be affirmed, p. 724.

Appeal and error.- All presumptions are in favor of the regularity of the judgment appealed from, and where the defendant waited three years after judgment before prosecuting his writ of error, he is not entitled to any peculiar favor, p. 724.

Cited and followed in Sturges v. Carter, 114 U. S. 523, 29 L. 244, 5 S. Ct. 1020, presuming judgment of Circuit Court correct, unless contrary is shown.

7 How. 726-729, 12 L. 889, HARDEMAN v. HARRIS.

Equity pleading.- If an exception be taken to an answer in chancery upon the ground that certain allegations in a bill are neither answered, admitted nor denied, the omission to answer the allegations is not a good ground for exception to the answer, if not material, p. 728.

Cited and followed in Brown v. Pierce, 7 Wall. 212, 19 L. 136, examining facts under an answer by a judgment creditor of grantee under voidable conveyance.

Slavery.- The fact that notes were given for purchase of slaves brought into Mississippi, after the 1st day of May, 1833, is no defense to a suit on such notes, the answer to a bill setting up those facts having omitted to notice the allegaon, such omission was not a good ground for exception, p. 728.

Cited, arguendo, in State v. Buckley, 54 Ala. 616, holding after the adoption of the Constitution of 1875, impeachment existed only as therein provided.

Equity pleading. --- Where the allegation in a bill was that the complainants were only sureties, and their principal was insolvent, the answer was not justly subject to exception for omitting to notice it. The fact in no way strengthened the equity of the complainants, p. 729.

7 How. 729-738, 12 L. 890, CUTLER v. RAE.

Jurisdiction. - Consent of parties cannot give jurisdiction, and the Supreme Court will take notice of the want of jurisdiction of the lower court without waiting for an objection from either party, p. 731.

Cited in Mansfield, etc., R. R. v. Swan, 111 U. S. 384, 28 L. 464, 4 S. Ct. 512, holding judicial power of United States must not be exerted in a case to which it does not extend; Van Antwerp v. Hulburd, 7 Blatchf. 442, F. C. 16,826, declining jurisdiction of suit to interfere with duties of United States treasurer; Ex parte Des Rochers, McAll. 71, F. C. 3,824, applying principle in case of habeas corpus. Cited with approval in dissenting opinion, Dred Scott v. Sandford, 19 How. 567, 15 L. 768, majority holding upon writ of error the record of all proceedings is brought before this court, and is open to its inspection.

Admiralty has jurisdiction where the vessel or the cargo is subject to a lien created by the maritime law, and when the lien is attached to the vessel or cargo, it will, until it is discharged, adhere to the property in the hands of third persons, and will follow the proceeds, in certain cases, in the hands of assignees, p. 731.

Cited and followed in Eads v. The H. D. Bacon, Newb. 277, F. C. 4,232, holding a lien exists for salvage services upon property saved; The Lewellen, 4 Biss. 160, F. C. 8,307, holding United States District Courts have exclusive original jurisdiction of all civil cases of admiralty and maritime jurisdiction; Nickerson v. John Perkins, 3 Ware, 95, F. C. 10,252, holding the lien of salvors is a maritime lien not depending on possession; The Sarah Jane, 1 Low. 204, F. C. 12,349, holding admiralty has jurisdiction of libel for wages, although earned in one State; Hatch v. Steamboat Boston, 3 Fed. 810, holding suit for debt against owners did not release statutory lien on boat; The Sterling, 20 Fed. 752, holding salvage lien not waived by allowing owner possession of vessel; The Roanoke, 50 Fed. 577, holding lien of salvor does not depend upon possession; Morse v. Pomeroy Coal Co., 75 Fed. 429, holding cargo liable for salvage, whether called general average or not.

Cited with approval in The Monte A., 12 Fed. 335, holding a judgment in personam cannot ordinarily be entered in a suit in rem; Vandewater v. S. S. Yankee Blade, McAll. 11, F. C. 16,847, holding maritime liens will not be extended by implication; Hill v. The Golden Gate, 12 Fed. Cas. 162, holding an admiralty sale can alone pass title to a vessel discharged of lien; Oologardt v. Anna, 18 Fed. Cas. 744, reserving opinion as to whether admiralty has jurisdiction of proceeding in rem for general average.

Admiralty jurisdiction - General average. - Party entitled to contribution has no absolute lien upon the goods liable to contribute. The owner is liable, because, at the time he receives the goods, they are bound to share in the loss of other property by which they have been saved; and he is not entitled to demand them until the contribution has been paid, hence, as this lien upon his goods is discharged by the delivery, the common law, and not the marine law, implies a promise that he will pay it, pp. 731, 732.

Cited in Bags of Linseed, 1 Black, 113, 17 L. 38, holding lien of shipowner lost by unconditional delivery of goods to consignee; Beane v. The Mayurka, 2 Curt. 77, F. C. 1,175, holding there is no maritime lien created by a general average loss; The Congress, 1 Biss. 44, 45, F. C. 3,099, holding the court in admiralty will not entertain jurisdiction in cases of general average unless all parties are before it; Young v. Orpheus, 2 Cliff. 39, F. C. 18,169, holding contract to furnish materials for construction of vessel not within admiralty jurisdiction; Cheraw, etc., R. R. v. Broadnax, 109 Pa. St. 440, 58 Am. Rep. 736, 1 Atl. 231, both holding master had possessory lien upon cargo for general average.

Cited with approval in dissenting opinion, Dupont v. Vance, 19 How. 178, 15 L. 585, majority holding the owner of cargo jettisoned has maritime lien on vessel for general average contribution; Kellum v. Emerson, 2 Curt. 83, F. C. 7,669, holding admiralty has not jurisdiction over libel asserting equitable title to one-fourth of a vessel; Gloucester Ins. Co. v. Younger, 2 Curt. 333, 334, F. C. 5,487, holding, until contrary decision is made, admiralty has jurisdiction over marine insurance; The Ranier, Deady, 441, F. C. 11,565, holding United States has no lien for violation of certain acts until seizure; Wenberg v. Cargo of Mineral Phosphate, 15 Fed. 286, holding admiralty has no jurisdiction of petitory suits based upon breach of trust; Cranston v. Cargo of Coal, 22 Fed. 615, holding lien for freight depends upon detention of goods until freight is paid.

Distinguished in Ralli v. Troop, 157 U. S. 400, 39 L. 749, 15 S. Ct. 662, collecting cases and holding loss without direction of master by scuttling of ship by port authorities not general average loss. Cited and distinguished in Dike v. The St. Joseph, 6 McLean, 574, 575,

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