Supreme Court of United States.
*35 Messrs. Chipman and Hosmer, for the plaintiffs in error; no opposing counsel.
Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court.
None of the objections to the reading of the deposition go to the testimony of the witness. All of them relate to defects and irregularities which might have been obviated by retaking the deposition. It does not appear that any notice beforehand was given to the counsel of the plaintiffs that they would be made. In such cases the objection must be noted when the deposition is taken, or be presented by a motion to suppress before the trial is begun. The party taking the deposition is entitled to have the question of its admissibility settled in advance. Good faith and due diligence are required on both sides. When such objections, under the circumstances of this case, are withheld until the trial is in progress, they must be regarded as waived, and the deposition should be admitted in evidence. This is demanded by the interests of justice. It is necessary to prevent surprise and the sacrifice of substantial rights. It subjects the other party to no hardship. All that is exacted of him is proper frankness.
The settled rule of this court is in accordance with these views.[*]
The District Court erred in excluding the deposition, and *36 the Supreme Court of the Territory erred, as regards this point, in affirming the judgment.
JUDGMENT REVERSED, and the case remanded with direction to issue
A VENIRE DE NOVO.
[*] The York Co. v. Central Railroad, 3 Wallace, 113; Shutte v. Thompson, 15 Id. 160; Buddicum v. Kirk, 3 Cranch, 293.
