TOOKER et al. v. THOMPSON et al., 24 F. Cas. 52

BY THE COURT. By a rule of this court, all formal objections ■ to depositions are required to be stated in writing, before the cause is taken up for trial, or such objections are. ■ considered as waived. The above objections come within this rule, as formal.— But, if this were not so, the objections, with one exception, are unsustainable. In his certificate, the person who took the depositions states that the witnesses live more than one hundred miles from the place of holding the court. This is sufficient The place is named in the caption, and that complies with the statute. Patapsco Ins. Co. v.

Southgate, 5 Pet. [30 U. S.] 604. And it is stated that the defendants have no agent known to the commissioner residing within one hundred miles of the place of taking the depositions. The objection as to the authority of the commissioner, if made in time, must have been sustained. The certificate of the clerk of the circuit court where he was appointed is in due form. The only objection to it is, that the presiding judge has not certified that the attestation is in due form. But this is essential to make the certificate evidence.

The words of the act of congress are, “the records and judicial proceedings of the courts of any state, shall be proved or admitted in any other court within the United States, by the attestation of the clerk, and the seal of the court annexed, if there be a seal, together with tlie certificate of the judge, chief justice or presiding magistrate, as the case may be, that the said attestation is in due form.” This, in terms, applies to the state courts; but the rule is equally applicable to the courts of the United States. The clerk certifies that the person taking these depositions was appointed commissioner, &c.

This appointment, being a matter of record, is properly certified by the clerk. But the certificate of the presiding judge is made essential by the act where any matter or judicial proceeding is certified from the record. The words are, “the records and judicial proceeding.” The fourth objection, If made in time, would not have been sustainable. Whether an individual be sworn before he or the justice writes the deposition, cannot be material. If written before the oath, the mind of the witness is drawn specially to the language used, and he swears to it.

But on the ground that the objections under the rule of this court should have been indorsed on the deposition before the cause is called for trial, the objections are overruled.