The Argo

15 U.S. 287, 4 L. Ed. 241, 2 Wheat. 287, 1817 U.S. LEXIS 404

Opinion

Mr. Chief Justice Marshall

delivered the opinion of- the court.

On considering the 30th section of the judiciary act of 1789, the court is of opinion that the proviSion, as to taking depositions ae bene esse, does not apply to cases pending in this court. In terms, the provision refers to cases in the district and circuit courts. Testimony, by depositions, can be regu-: larly taken for this court only under a commission issuing according to its rules. A practice has hir therto prevailed tó take depositions de bene esse in causes pending here, and, as no objection has been made at the bar, it has passed sub silentio. Under such circumstances we cannot say that the United States are in default in taking depositions according to the usual practice, We shall, therefore, continue this cause to the next term, to enable the parties, if they choose, to take testimony under commission^ issued under the rules prescribed by this .court.

Cause continued. a

a See the rule of the present term as to the mode of taking depositions, by commission, out of this court, or the circuit courts, in causes of admiralty and- maritime jurisdiction.. This rule applies both to prize and instance causes. Farther proof is admissible in the latter as well as the former. (The William Wells, 7 Cranch. 22. The¡ Clarissa Claiborne, lb. 107.) But it must not be understood that instance or revenue causes stand on the same footing with prize causes, in respect to the inadmissibility of farther proof, until they are heard on the original evidence. Farther proof m.ay be-exhibited in these cases, in the first instance, and if the court have doubts on the hearing, still farther proof may be ordered.