U.S. Supreme Court The Argo, 15 U.S. 2 Wheat. 287 287 (1817)
15 U.S. (2 Wheat.) 287
APPEAL FROM THE CIRCUIT COURT
FOR THE DISTRICT OF MASSACHUSETTS
The provision in the Judiciary Act of 1789, ch. 20, section 30, as to taking depositions de bene esse does not apply to cases pending in this Court, but only to cases in the district and circuit court. Testimony by deposition can be, regularly taken for this Court only under a commission issuing according to its rules.
This was an information for a violation of the nonimportation acts. On the part of the appellants it was alleged that the vessel (which sailed from Portland in the District of Maine in April, 1813, and returned to that port laden with a cargo of molasses in the month of August of the same year), instead of going to Cumana, her ostensible port of destination, had proceeded to Guadaloupe, then a British possession, and there took in her cargo. This was the sole question of fact in the cause, on which the court below decreed restitution to the claimant, from which decree an appeal was entered on behalf of the United States to this Court.
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 de 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 regularly taken for this Court only under a commission issuing according to its rules. A practice has hitherto prevailed to 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 is 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 commissions issued under the rules prescribed by this Court.