ter of the middle name of one of the parties will not be sufficient to exclude the deposition; and it is no ground for rejecting a deposition because the plaintiff is named therein C. M. Grimes, instead of Chilton M. Grimes, as in the pleadings and dedimus; 2 nor will it be excluded because the caption gives the names of the defendants as A. B. and C. D. Smith.3 66 Where the plaintiffs in the suit were described in the writ ast a corporation duly established by an act of the legislature of the State of Connecticut," and the caption of the deposition offered as evidence described the plaintiffs, at whose request the deposition was taken, as "a corporation established in the State of Massachusetts," it was held that this discrepancy was no cause for rejecting the deposition.* § 60. The caption should state at whose request the deposition was taken.-It is held, in Massachusetts, that if the caption does not state at whose request the deposition was taken, it is imperfect, and the deposition cannot be used.5 This decision, however, was based on their statute, which requires that the officer shall insert the names of the person at whose request the deposition was taken. This will, therefore, be authority, whenever a similar statutory requirement exists. It has been decided in Maine, where there was no such statutory requirement, that a deposition is not to be rejected merely because its caption omits to state at whose request it was taken. The Court, in the case, said: "But in R. S. Chap. 133, Sec. 17, the facts required to be stated therein are specifically set forth, and this is not among those statutory requirements, and we have neither the power nor the inclination to increase their number." In a Vermont case, the admission of a deposition taken in New Hampshire was objected to on account of the informality of the caption, which did not contain in the proper place the name of the person at whose request it was taken; but the Court said: "The certificate of the magistrate states that the deposition was taken 1 Field v. Tenny, 47 N. H. 513. 2 Grimes v. Martin, 10 Iowa, 347. 8 Adams v. Flanagan, 36 Vt. 400. 4 Hayward Rubber Co. v. Duncklee, 30 Vt. 29. 5 Welles v. Fish, 3 Pick. 74. 6 Gen. Stat. 1860, p. 676. 7 Knight v. Nichols, 34 Me. 208. at the request of the plaintiff, without naming him, but in the other part of the same certificate it is stated who the plaintiff was. This, we think, removes all doubt in regard to the matter, and the place where it was to be used is sufficiently apparent to make it admissible." 1 § 61. The certificate generally states the witness was sworn to testify the truth of his knowledge of the matter in controversy, in the cause for which taken; that he was examined, and his examination reduced to writing, read to and subscribed by him in the presence of the officer, at the time and place specified in the notice.2 The statutory requirements must be substantially complied with to render the deposition available in evidence. Where a notary's certificate stated that the depositions of witnesses were "by me corrected, as by them requested," before their signature, it is sufficient, without stating that they were read to the witness before signing.4 Where a commissioner certifies that the witness was personally known to him, "and, after being duly sworn, deposed as set forth above in his answers to the annexed interrogatories; and that said answers, as above set forth, were reduced to writing, read over to, approved and signed by, said witness in his presence," the certificate shows, prima facie, a substantial compliance with the requisites of the statute. It is not necessary that the names of the witnesses examined should be stated in the certificate. It is sufficient if they are referred to "as the above named deponents." § 62. Immaterial omissions in the certificate will not invalidate it. Thus, the omission of the date in the final certificate appended to a deposition, to the effect that it was read over to the witness, is of no consequence when another certificate appended to the deposition gives the date when it was sworn to 1 Harrison v. Nichols, 31 Vt. 709. 2 Moss v. Booth, 34 Mo. 316; Stetson v. Lyons, 34 Ala. 140; Thomas v. Wheeler, 47 Mo. 363. McCrellis v. McCrellis, 38 Vt. 135; Dye v. Bailey, 2 Cal. 383; Williams v. Chadbourne, 6 Id. 559. 4 Higgins v. Wortel, 18 Cal. 330. and subscribed; especially when it appears that the deposition was not required to be taken at any given time.1 So, under a statute which required that a deposition should be carefully read to and subscribed by the witness, if the certificate of the officer who took it is that it was read to the witness, omitting the word "carefully," the deposition will not, therefore, be excluded. It will be presumed that the officer performed his duty under the statute. The caption of a deposition stated “the adverse party was duly notified and was not," omitting the word "present," it may be obviously understood, and it cannot be regarded as substantially defective. And a deposition was held not to be insufficient because the officer taking it omitted the word "presence" from his certificate-that the deposition "was reduced to writing in my, and by the said deponent sworn to and subscribed in my presence.' § 63. As to swearing the witness. The statutes require that the fact that the witness was sworn shall be certified to by the officer taking the deposition; and where it appears that the deponent was not duly sworn, the deposition will be rejected. Many of the decisions are very strict on this requirement, holding there must be a literal compliance with the statute. Thus, when a statute required, as most of our statutes do, that a deponent shall be sworn "to testify the truth, and nothing but the truth, relating to the cause or matter for which the deposition is to be taken," and it was stated that "the deponent was first sworn according to law to the aforesaid deposition by him subscribed," the deposition was rejected. But where th certificate to a deposition states that the deponent "was sw011 to testify the whole truth of his knowledge touching the matters in controversy in the cause," it was held to be an iramaterial deviation from the exact requirements of the statute in 1 Elgin v. Hill, 27 Cal. 372. 2 Sheldon v. Wood, 2 Bosw. 267. 8 Kidder v. Blaisdell, 45 Me. 461. 4 Stone v. Stilwell, 23 Ark. 444. 5 The witness should be sworn before giving his deposition. Armstrong v. Burrows, 6 Watts, 266; Stonebreaker v. Short, 8 Penn. St. 155. But in Vermont it is immaterial whether sworn before or after. Barron v. Pettis, 18 Vt. 385. 6 Parsons v. Huff, 38 Me. 137; Brighton v. Walker, 35 Me. 132; Erskine v. Boyd, Id. 511; Fabyan v. Adams, 15 N. H. 371; Rainer v. Haynes, 1 Hemp. 689; Putnam v. Larrimore, Wright, (Ohio) 746; Simpson v. Carleton, 1 Allen, 109. such cases.1 It has been held that a certificate that the depo nent was "duly sworn" according to law, imports that the form of the statute was properly observed.2 The omission of a commissioner to show in his formal certificate that the witness was sworn, is no ground for suppressing the deposition, when the commissioner shows in the preamble to the deposition that the witness was by him cautioned and sworn to speak the truth and nothing but the truth, the whole truth and nothing but the truth, in answer to the interrogatories.3 A liberal rule is held in Massachusetts regarding a deposition taken out of the State. It is held that if the deponent was sworn, it is not necessary to follow the statutory form.1 § 64. The identity of the witness is in some places required to be certified to, as in Alabama, California, Delaware, and Texas. Unless the commissioner certifies to his personal knowledge of the identity of the witness, or that proof thereof was made before him, the deposition is inadmissible.5 § 65. Writing out the deposition. The statutes forbid the writing out of the answers in the deposition, by any one a party to, or interested in, the suit. Thus, when it appeared that a deposition had been written by the attorney of the party in whose favor it was to be read, instead of by the commissioner designated in the notice, and that the adverse party was not present at the time, it was held the deposition should be excluded.7 It is held that a party in whose behalf a deposition is taken, or his attorney, may write the questions, but not the answers thereto. There is, however, no objection to a witness writing 1 Welborn v. Swain, 22 Ind. 194. 2 Dennison v. Benner, 41 Me. 332; New Jersey Ex. Co. v. Nichols, 3 Vroom, 166; Ballard v. Perry, 28 Tex. 347. The officer taking a deposition must certify that the witness was first duly sworn, but the certificate of that fact may be made either at the end or at the commencement of the deposition. House v. Elliot, G Ohio St. 497; S. P. Doe v. King, 4 Miss. 125. 3 Broadnax v. Sullivan, 29 Ala. 320. 4 Stiles v. Allen, 5 Allen, 320; Quinley v. Atkins, 9 Gray, 370. 5 Buford v. Gould, 35 Ala. 265; Farrelly v. Maria, 34 Id. 284. Steele v. Dart, 6 Ala. 798. But see Donoho v. Petil, 1 Miss. 440. 7 Hurst v. Larpin, 21 Iowa, 484. See Bank v. Woods, 11 Penn. St. 99. 8 Snyder v. Snyder, 50 Ind. 492. his answers himself.1 The proper person to write out the deposition is the officer commissioned to take it. It was therefore held that depositions taken under a commission executed by commissioners, one of whom could not write, were not admissible in evidence.2 But when it appeared that the magistrate who took a deposition, not being a ready penman, called in a third person, who was disinterested, who wrote the answers of the witness, the magistrate being present and supervising, it was held that the deposition might answer the requirements of the statute, but that such a practice might be liable to abuse, and should not be encouraged.3 If a deposition is written in the absence of the magistrate, and the other party cross-examines the witness, and does not object to the informality at the time, the deposition may be put in evidence.4 When a commissioner is appointed to take depositions, it is improper for the witness to produce his deposition written by himself, not in the presence of the magistrate.5 § 66. The manner of writing out the deposition is in a form to respond to certain numbered interrogatories, the answer being given to a certain interrogatory referred to. In California, it was held that there could be no objection to a deposition taken by a party in the State where the opposite party failed to appear, because it was in a narrative form, and not taken by question and answer.6 Where the commissioner writes down the answers of two witnesses as one deposition, though it be more regular to write them separately, yet, if both have signed and sworn to everything written as answers to the several questions the commission is good." § 67. Language of the deposition.-Depositions may be taken in a foreign language when the witnesses are unable to 1 Carlyle v. Plumer, 11 Wis. 96; Shropshire v. Stevenson, 17 Ga. 622; Wilson v. Smith, 5 Yerg. 379. 2 Austen v. Carey, 23 Ga. 4. 8 Cushman v. Wooster, 45 N. H. 416. 4 Logan v. Steele, 3 Bibb, 230. 5 Foster v. Foster, 20 N. H. 208; McEntire v. Henderson, 1 Penn. St. 402. • Pralus v. Pacific etc. Co. 35 Cal. 30. 7 May v. Norton, 11 La. An. 714. |