witness against prosecutions for perjury committed in the examination itself, is consistent with the constitutional guaranty," quære. U. S. v. Bell, (1897) 81 Fed. Rep. 830. Partial repeal in revenue law cases. So much of this section as relates to the use of evidence against a party for the enforcement of a penalty or forfeiture is repealed by the Act of June 22, 1874, ch. 391, sec. 5, requiring the production of books and papers by compulsory process, in any proceeding other than criminal arising under the revenue laws. U. S. v. Three Tons Coal, (1875) 6 Biss. (U. S.) 379. But such section 5 has been held unconstitutional. See infra, p. 43. Sec, 861, [Mode of proof in common-law actions.] The mode of proof in the trial of actions at common law shall be by oral testimony and examination of witnesses in open court, except as hereinafter provided. [R. S.] Act of Sept. 24, 1789, ch. 20, 1 Stat. L. 88; Act of Feb. 20, 1812, ch. 25, 2 Stat. L. 682; Act of Jan. 24, 1827, ch. 4, 4 Stat. L. 197, 199. Examination of party before trial. A party to an action at law in a federal court cannot be examined at the instance of the adverse party before trial, except in cases where depositions before trial are specially authorized. Easton v. Hodges, (1877) 7 Biss. (U. S.) 324. The fact that there is provision for such examination by a state statute in state courts does not authorize such examination in any federal court. Ex p. Fisk, (1885) 113 U. S. 713: Beardsley v. Littell, (1877) 14 Blatchf. (U. S.) 102; Colgate v. Compagnie Francaise, etc., (1885) 23 Fed. Rep. 82. But see Bryant r. Leyland, (1881) 6 Fed. Rep. 125. The examination of a party before trial commenced in a suit in a state court cannot be continued after the removal of such suit to the federal court. Ex p. Fisk, (1885) 113 U. S. 713, reversing Fogg v. Fisk, (1884) 19 Fed. Rep. 235. This section does not appear to refer to discovery, whether by bill or interrogatory. Bryant . Leyland, (1881) 6 Fed. Rep. 125. Mode of examination: federal and state acts." In determining, therefore, whether the right exists to take testimony by depositions in common-law causes pending in the federal courts, reference must be had to the statutes of the United States. When, however, the facts are such in a given case that, under the provisions of the statutes of the United States, the right to take the testimony of witnesses by depositions exists, then, as to the mere mode of procuring the deposition, parties may follow at their election either the provisions of the state law or of the Act of Congress." McLennan v. Kansas City, etc., R. Co., (1884) 22 Fed. Rep. 198. But where the mode of proceeding prescribed by the laws of the state conflicts with the laws of the United States, in reference to the taking of depositions, depositions taken according to the mode prescribed by the state statutes cannot be admitted in an action at law in a federal court. Randall v. Venable, (1883) 17 Fed. Rep. 162. Interrogatories disallowed. Where interrogatories to the opposite party had been filed in the manner and form prescribed by state statute, it was held that, under section 861, these could not be allowed in legal actions in the federal courts. National Cash-Register Co. v. Leland, (C. C. A. 1899) 94 Fed. Rep. 502, (1896) 77 Fed. Rep. 242. Where an action in a state court has been discontinued and an action is subsequently instituted in a federal court between the same parties and for the same claim, it was held that depositions taken for the purpose of the first action cannot be used in the second action; notwithstanding the fact that the practice in the state permits the use of depositions taken in a pending action to be used in a renewed suit on the same cause of action and between the same parties. Seeley v. Kansas City Star Co., (1896) 71 Fed. Rep. 554. Where an action was removed from a state to a federal court and interrogatories were attached to the petition, in accordance with the statutory provisions of the state, it was held that, relying upon section 861, the defendant need not file answers to such interrogatories. Pierce v. Union Pac. R. Co., (1891) 47 Fed. Rep. 709, following Ex p. Fisk, (1885) 113 U. S. 713. The testimony given at a former trial by a witness, the legal presumption being that he was within the jurisdiction of the court, is not admissible under this section. Salt Lake City v. Smith, (C. C. A. 1900) 104 Fed. Rep. 457. * * * * * * * * Right to trial by jury. — Rule No. 73 of the Supreme Court of the District of Columbia, providing that "in any action arising ex contractu, if the plaintiff or his agent shall have filed an affidavit setting out distinctly his cause of action, and shall have served the defendant with copies of his declaration and of said affidavit, he shall be entitled to a judgment for the amount so claimed, unless the defendant shall file, along with his plea, if in bar, an affidavit of defense denying the right of the plaintiff as to the whole or some specified part of his claim, and specifically stating also, in precise and distinct terms, the grounds of his defense," does not deprive the defendant who has filed a plea in bar, and has claimed the benefit of trial by jury, but who has not filed the affidavit of defense pursuant to the rule, of his right to a trial by jury; as the rule simply "prescribes the means of making an issue," and the issue having been made as prescribed, the right of trial by jury accrues. Fidelity, etc., Co. v. U. S., (1902) 187 U. S. 315, citing and following Smoot r. Rittenhouse, decided by the Supreme Court Jan. 10, 1876, and reported in 27 Wash. L. Rep. 741. Order for surgical examination. -A state statute, giving the court in personal injury cases the right to order a surgical examination of the plaintiff, does not conflict with this section, and a federal court in a state where such statute prevails may order such an examination. Camden, etc., R. Co. v. Stetson, (1900) 177 U. S. 172. In the absence of such a state statute, however, the court has no power to make the order. Union Pac. R. Co. v. Botsford, (1891) 141 U. S. 250. Sec. 862. [Mode of proof in equity and admiralty causes.] The mode of proof in causes of equity and of admiralty and maritime jurisdiction shall be according to rules now or hereafter prescribed by the Supreme Court, except as herein specially provided. [R. S.] Act of Aug. 23, 1842, ch. 188, 5 Stat. L. 518. Supreme Court regulations. The Supreme Court, under its power to prescribe rules, "having proceeded to regulate this subjectmatter, their regulation must be regarded complete and exclusive, inhibiting what it does not allow, as well as governing what is fixed by positive appointment." The Sloop Merchant, (1947) Abb. Adm. 1, 17 Fed. Cas. No. 9,434, citing Gibbons v. Ogden, (1824) 9 Wheat. (U. S.) 1. The delegation by Congress to the Supreme Court of the power set out in this section is constitutional; and the amendment of the 67th Rule of Equity, which was adopted by virtue of the power so conferred, gives United States courts the right to appoint examiners to take testimony orally in districts and cir cuits other than those in which suits are pending, and the courts in the districts to which the examiners are sent have power to compel the attendance of witnesses. White t. Toledo, etc., R. Co., (C. C. A. 1897) 79 Fed. Rep. 133 [citing Wayman v. Southard, (1825) 10 Wheat. (U. S.) 1; Beers v. Haughton, (1835) 9 Pet. (U. S.) 359; and U. S. Bank . Halstead, (1825) 10 Wheat. (U.. S.) 51]. Repeal of Judiciary Act of 1789. The Judiciary Act of 1789 (1 Stat. L. 88, ch. 20, sec. 30), in relation to the oral examination of witnesses in equity causes, was not expressly repealed until the adoption of the Revised Statutes." Blease v. Garlington, (1875) 92 U. S. 1; Coosaw Min. Co. v. Farmers' Min. Co., (1895) 67 Fed. Rep. 31. Sec. 863. [Depositions de bene esse.] The testimony of any witness may be taken in any civil cause depending in a district or circuit court by deposition de bene esse, when the witness lives at a greater distance from the place of trial than one hundred miles, or is bound on a voyage to sea, or is about to go out of the United States, or out of the district in which the case is to be tried, and to a greater distance than one hundred miles from the place of trial, before the time of trial, or when he is ancient and infirm. The deposition may be taken before any judge of any court of the United States, or any commissioner of a circuit court, or any clerk of a district or circuit court, or any chancellor, justice, or judge of a supreme or superior court, mayor or chief magistrate of a city, judge of a county court or court of common pleas of any of the United States, or any notary public, not being of counsel or attorney to either of the parties, nor interested in the event of the cause. Reasonable notice must first be given in writing by the party or his attorney proposing to take such deposition, to the opposite party or his attorney of record, as either may be nearest, which notice shall state the name of the witness and the time and place of the taking of his deposition; and in all cases in rem, the person having the agency or possession of the property at the time of seizure shall be deemed the adverse party, until a claim shall have been put in; and whenever, by reason of the absence from the district. and want of an attorney of record or other reason, the giving of the notice herein required shall be impracticable, it shall be lawful to take such depositions as there shall be urgent necessity for taking, upon such notice as any judge authorized to hold courts in such circuit or district shall think reasonable and direct. Any person may be compelled to appear and depose as provided by this section, in the same manner as witnesses may be compelled to appear and testify in court. [R. S.] Act of Sept. 24, 1789, ch. 20, 1 Stat. L. 88; Act of March 1, 1817, ch. 30, 3 Stat. L. 350; Act of Feb. 26, 1853, ch. 80, 10 Stat. L. 168; Act of July 29, 1854, ch. 159, 10 Stat. L. 315; Act of May 9, 1872, ch. 146, 17 Stat. L. 89. For other statutory provisions relative to Jepositions, see the General Index of this work. Notaries public of states may take depositions, see NOTARIES PUBLIC. "There are two general methods for taking depositions to be used on the trial of law cases provided for in the Revised Statutes; the one being the mode pointed out in section 863, and the other in section 866. When taken under the provisions of the former section, a commission to the officer is not sued out from the court in which the cause is pending, but the party desiring to take the testimony gives notice to the opposite party or his attorney of the time and place when and where the testimony is to be taken, and selects as the commissioner any one of the parties named in the section. When depositions are thus taken, no opportunity is afforded to the opposite party to be heard upon the matter of the selection of the commissioner. Hence it is required of the party taking the deposition that he shall select a disinterested commissioner, and the statute requires the party selected to certify that he is not of counsel for either party, nor interested in the event of the suit. If, however, the depositions are not taken under section 863, but under the authority granted in section 866, then, by the express terms of the latter section, the provisions of sections 863, 864, and 865 are not applicable thereto. Section 866 provides for the court granting a dedimus, and in so doing it is presumed that the court will select a proper person to act as the commissioner, and the parties can be heard upon the question of the appointment before the commission issues. The authority conferred by section 866 is the granting a dedimus to take depositions according to common usage. In other words, if the right to take depositions existed, then the party desiring to take the same might do so under the provisions of section 863, or according to common usage, which, in an action at law, would be deemed to be in accordance with the mode provided for by the statutes of the state." Giles v. Paxson, (1888) 36 Fed. Rep. 882. The taking of the deposition under this section is "a privilege to be exercised at the option of the party desiring the evidence of a witness living more than one hundred miles from the place of trial; and the opposite party has "no right to demand that, under such circumstances, a deposition should be taken;" and "if the litigant does not exercise the option to take the evidence of his witness by deposition, he can recover for what he is compelled to pay his witness by law as traveling fees." Hunter v. Russell, (1894) 59 Fed. Rep. 964; Prouty v. Draper, (1842) 2 Story (U. S.) 199, 20 Fed. Cas. No. 11,447. This section applies to equity cases and to admiralty cases, which are coupled with equity cases under section 862. Stegner v. Blake, (1888) 36 Fed. Rep. 183. But depositions taken under this section cannot be used as evidence in an equity cause in the Circuit Court of the District of Columbia. Walker v. Parker, (1840) 5 Cranch (C. C.) 639, 29 Fed, Cas, No. 17,082. Bankruptcy proceedings do not fall within the purview of this section. In re Dunn, (1874) 9 Nat. Bankr. Reg. 487, 8 Fed. Cas. No. 4,173. Ex parte evidence." There is nothing in the law, or in the reason of the case, which supplies a different authority, in respect to ex parte evidence taken out of court, from that which legally appertains to the court in proceedings before it. The act places both on the same footing." In re Judson, (1853) 3 Blatchf. (U. S.) 148. Limitations of the provisions of the section. The provisions of this section are "not only limited by its terms to depositions de bene esse, but its provisions are expressly made inapplicable to section 866." North American Transp., etc., Co. r. Howells, (C. C. A. 1903) 121 Fed. Rep. 694. Witnesses in foreign country. The provisions of this section "apply to the taking of depositions of witnesses within the United States, and have no application to the taking of depositions of witnesses in a foreign country." Bird r. Halsy, (1898) 87 Fed. Rep. 671; Cortes Co. r. Tannhauser, (1883) 1s Fed. Rep. 667; The Alexandra, (1900) 104 Fed. Rep. 904. But see Bischoffscheim v. Baltzer, (1882) 10 Fed. Rep. 1. Not repealed by section 914.-Sections 863 to 865, inclusive, set out all the requirements which must be followed in all examinations de bene esse in federal courts; and section 914 does not repeal them. Sage . Tauszky, (1877) 6 Cent. L. J. 7, 21 Fed. Cas. No. 12,214. Right to take testimony not limited to circuit. Neither by equity rule 67 nor by R. S. secs. 863, 864, is the right to take testimony limited to places within the circuit in which the action is pending. Thum v. Andrews, (1892) 53 Fed. Rep. 84. Nor to district. A deposition taken out of the district where the trial was held is admissible. Patapsco Ins. Co. v. Southgate, (1831) 5 Pet. (U. S.) 604; Russell v. Ashley, (1847) Hempst. (U. S.) 546, 21 Fed. Cas. No. 12,150. Strict construction. -The authority to take testimony under the act, "being in derogation of the rules of the common law, has always been construed strictly; and therefore it is necessary to establish that all the requisites of the law have been complied with before such testimony is admissible." Bell v. Morrison, (1828) 1 Pet. (U: S.) 351; Patapsco Ins. Co. v. Southgate, (1831) 5 Pet. (U. S.) 604; Carrington v. Stimson, (1853) 1 Curt. (U. S.) 437, 5 Fed. Cas. No. 2,450; Harris v. Wall, (1849) 7 How. (U. S.) 693; Shankwiker v. Reading, (1847) 4 MeLean (U. S.) 240; Wilkinson v. Yale, (1853) 6 McLean (U. S.) 16; Luther v. The Schooner Merritt Hunt, (1853) Newb. Adm. 4, 15 Fed. Cas. No. 8,610; Merrill v. Dawson, (1848) Hempst. (U. S.) 563; Jones v. Neale, (1896) 2 Mart. (N. Car.) 136: U. S. v. Tilden, (1879) 10 Ben. (U. S.) 566, 28 Fed. Cas. No. 16,522, where the court added that the statute "must have a fair and reasonable construction, having regard to the particular purpose it was intended to subserve and the special evils it was designed to remedy; Dunkle v. Worcester, (1869) 5 Biss. (U. S.) 102, 8 Fed. Cas. No. 4,162; Jones v. Greenolds, (1806) 1 Cranch (C. C.) 339; Thorpe r. Simmons, (1819) 2 Cranch (C. C.) 195, 23 Fed. Cas. No. 14,007; Russell v. Ashley, (1847) Hempst. (U. S.) 549; Wilson Sewing Mach. Co. r. Jackson, (1877) 1 Hughes (U. S.) 295, 30 Fed. Cas. No. 17,853; Stein v. Bowman, (1839) 13 Pet. (U. S.) 209; Cook r. Burnley, (1867) 11 Wall. (U. S.) 659; Shutter. Thompson, (1872) 15 Wall. (U. S.) 151; Hunter . International R. Imp. Co., (1886) 28 Fed. Rep. 842; In re Thomas, (1888) 35 Fed. Rep. 822; Bowie r. Talbot, (1805) 1 Cranch (C. C.) 247; Rutherford r. Geddes, (1866) 4 Wall. (U. S.) 224; Penns . Ingraham, (1811) 2 Wash. (U. S.) 487; Banert r. Day, (1814) 3 Wash. (U. S.) 244; Read r. Bertrand, (1825) 4 Wash. (U. S.) 558; Rhoades r. Selin, (1827) 4 Wash. (U. S.) 724; The Samuel, (1816) 1 Wheat. (U. S.) 9. Mode of taking depositions-state practice. When the facts are such in a commonlaw case that, under the provisions of the statutes of the United States, the right to take the testimony of witnesses by depositions exists, then, by reason of R. S. sec. 914, as to the mere mode of procuring the depositions, parties may follow at their own election either the provisions of the state law or of the Act of Congress. McLennan v. Kansas City, etc., R. Co., (1884) 22 Fed. Rep. 198. See also Flint . Crawford County, (1879) 5 Dill. (U. S.) 481; U. S. v. Fifty Boxes, etc., Lace, (1899) 92 Fed. Rep. 601; U. S. Life Ins. Co. v. Ross, (C. C. A. 1900) 102 Fed. Rep. 722. This view has been confirmed by statute, see Act of March 9, 1892, ch. 14, 27 Stat. L. 7, given infra, p. 22. But in adopting a state practice as to the taking of depositions the court does not dispense with the requirements of the Act of Congress, such adoption of the state law referring only to the form and mode of taking depositions. Curtis v. Central R. Co., (1855) 6 McLean (U. S.) 401. Under Examination before issue joined. this section, and under section 858, providing that, with certain exceptions in the federal courts, no witness shall be excluded in any civil action because he is a party to or interested in the issue tried, the defendant in an action on a promissory note was held entitled to examine the plaintiff de bene esse before issue joined, the plaintiff living outside of the district and at a greater distance from the place of trial than a hundred miles. Lowrey v. Kusworm, (1895) 66 Fed. Rep. 539, distinguishing Ex p. Fisk, (1885) 113 U. S. 713. But this section, together with Supreme Court Rule 68, in reference thereto, does not permit the taking of testimony de bene esse in an equity cause before issue joined. Stevens v. Missouri, ete., R. Co., (1900) 104 Fed. Rep. 934; Flower . MacGinniss, (C. C. A. 1901) 112 Fed. Rep. 377. "Depending in a District or Circuit Court.” Where a case has gone on appeal to the Supreme Court, it is no longer depending in a Circuit Court, and therefore is no longer within the provisions of this section. Richter r. Jerome, (1885) 25 Fed. Rep. 679. Causes pending in the Supreme Court.In The Argo, (1817) 2 Wheat. (U. S.) 287, the court was of the opinion that the provision as to taking depositions de bene esse does not apply to cases pending in the Supreme Court, depositions for use before such court being regularly taken only under a commission issuing according to its rules. Where witness "lives."-"For the purpose of taking a deposition under this statute, a witness lives where he can be found, and is sojourning, residing, or abiding for any lawful purpose." Mutual Ben. L. Ins. Co. v. Robison, (C. C. A. 1893) 58 Fed. Rep. 723. How distance measured. In the matter of taking the deposition of a witness who resides more than one hundred miles from the place of trial, "the distance is to be determined by the ordinary, usual, and shortest route of public travel, and not by a mathematically straight line between the place of residence and the place of trial." Jennings v. Menaugh, (1902) 118 Fed. Rep. 612 [following Ex p. Beebees, (1851) 2 Wall. Jr. (C. C.) 127, 3 Fed. Cas. No. 1,220; In re Foster, (1872) 44 Vt. 570; Smith v. Ingraham, (1827) 7 Cow. (N. Y.) 419]. Certificate as evidence of distance of residence. The certificate of the magistrate before whom the deposition is taken is competent evidence as to the distance at which the witness resides from the place of caption, this being a fact proper for the inquiry of the officer taking the deposition. Merrill v. Dawson, (1848) Hempst. (U. S.) 563 [citing Patapsco Ins. Co. r. Southgate, (1831) 5 Pet. (U. S.) 617; Bell v. Morrison, (1828) 1 Pet. (U. S.) 351]. Where, in his certificate, the person who took the depositions stated that the witnesses lived more than one hundred miles from the place of holding court, and further that the other party had no agent known to him residing within one hundred miles of the place of taking the depositions, it was held that the requirements of the act were satisfied. Tooker . Thompson, (1842) 3 McLean (U. S.) 92. Under the Act of Sept. 24, 1789, 1 Stat. L., ch. 20, 30, p. 88, the person before whom the deposition was taken certified that neither the opposite party nor his counsel resided within one hundred miles of the place of caption, and that, consequently, no notification of the time and place of taking the deposition was made out or served. It was held that such certificate was sufficient, it not being necessary for the commissioner to certify that the parties were not actually within that distance, and if they had been temporarily within such distance, and the commissioner was not aware thereof, the certificate would still be sufficient; but the certificate would not be valid if by parol proof it were established either that the party had resided within one hundred miles or that he was, and the commissioner knew him to be, temporarily within such distance. Dick v. Runnels, (1847) 5 How. (U. S.) 7. This section "does not apply to a witness who is casually absent from home, although he is found at a place more than one hundred miles from the place of trial of the cause, unless he is about going to sea, or is aged, infirm, etc." Er p. Humphrey, (1851) 2 Blatehf. (U. S.) 228, 12 Fed. Cas. No. 6,867. "The liability of the witness to be ordered out of the reach of the court is not one of the causes deemed sufficient by the law for taking a deposition de bene esse," and theretore it was held that where the witness was a seaman on board a United States gunboat in the harbor of Newport, and liable to be ordered to some other place and not to be able to attend the court at the time of its sitting, this was not a sufficient ground for the taking of the deposition de bene esse. The Samuel. (1816) 1 Wheat. (U. S.) 9. The certificate of the proper magistrate to the deposition "is competent evidence to prove the requirements of the Act have been fulfilled in taking and certifying the deposition." Smith r. Williams, (1847) 22 Fed. Cas. No. 13,127. The fact that the caption of the depositions fails to state the names of all the parties to the suit, that is, instead of naming each of the copartners as plaintiffs, it follows the style of the case as given in the notice and as docketed, is not a sufficient objection to exclude the use of the depositions, as the strict rule laid down by the Supreme Court as to transcripts of records to that court on error or appeal, upon which judgment or decree may follow, ought not to be pushed to the extreme in reference to depositions where all the parties had notice and knew in what case the testimony was sought. Egbert v. Citizens' Ins. Co., (1881) 7 Fed. Rep. 47. See also Merrill r. Dawson, (1848) Hempst. (U. S.) 563, where, the name of one of the defendants having been omitted in the caption of the deposition, but appearing in the court order appointing commissioners, in the notice served on the defendants, in the caption of the interrogatories which were filed and attached to and issued with the commission, in the commission which issued under the authority of the court, and in the oath of the commissioners to execute the same, the deposition was admitted; and Buckingham r. Burgess, (1844) 3 McLean (U. S.) 368, where it was held that, although the caption was not correctly stated, yet there could be no doubt or uncertainty in the matter. But see contra, Smith r. Coleman, (1821) 2 Cranch (C. C.) 237, 22 Fed. Cas. No. 13,029, where the court rejected the deposition, inasmuch as the name of one of the defendants had been omitted in the caption; Waskern r. Diamond, (1855) Hempst. (U. S.) 701, 29 Fed. Cas. No. 17,248, where it was held to be necessary to specify the names of all the parties to the suit, in the caption or some other part of the depositions, to the end that it may appear on their face that the testimony was taken in the same suit; Allen r. Blunt, (1846) 2 Woodb. & M. (U. S.) 121, 1 Fed. Cas. No. 217, where the fact that the names of the parties to the suit are not given correctly in the caption, it being de scribed as a suit against B., when it is really 9gainst B. & S., although the latter has not been served, is an objection, when the pro ceedings are to be strictly scrutinized as here, not without some weight; Centre v. Keene, (1820) 2 Cranch (C. C.) 198, where the objection that the style of cause was not stated in full in the caption was sustained; Peyton r. Veitch, (1816) 2 Cranch (C. C.) 123; and Murray c. Marsh, (1803) 2 Hayw. (N. Car.) 290. Misspelling and omission in caption.— Neither the misspelling, in the caption, of the name of one of the parties, nor the omission therein of the name of the county in which the action is pending, is a fatal objection. Van Ness r. Heineke, (1821) 2 Cranch (C. C.) 259. Parol evidence as to caption. Where the magistrate before whom the deposition was taken had not certified such a cause of caption as the law requires, parol evidence to disprove what the judge certified as to the caption was not allowed. Wheaton . Love, (1807) 1 Cranch (C. C.) 451, 29 Fed. Cas. No. 17,485. Caption not stating distance. The fact that the caption of the depositions does not state that the city where they are to be taken is more than one hundred miles from the place where the trial is to be held, is not a valid objection thereto, where the distance between the two places is more than one hundred miles, and such fact is well known to the court and to the respective parties. Egbert . Citizens' Ins. Co., (1881) 7 Fed. Rep. 47. Name of place where depositions taken. It is sufficient if, in the caption, the person who took the depositions names the place where they were taken. Tooker . Thompson, (1842) 3 McLean (U. S.) 92. No reason assigned in certificate for taking deposition. The fact that the officer who took the deposition did not, in his certificate, assign any reason for so taking it, was held a fatal objection. Sage r. Tauszky, (1877) 6 Cent. L. J. 7, 21 Fed. Cas. No. 12,214. County court judge. Where a probate court is organized for each county of the state and is a court of record having a seal, the judge of such probate court is a county judge, within the description of the law, and it is sufficient if the deposition be taken before him. Fowler . Merrill, (1850) 11 How. (U. S.) 375; Merrill . Dawson, (1848) Hempst. (U. S.) 563. Depositions taken by a magistrate who was a partner of the acting counsel to one of the parties were not allowed. Nichols r. Harris, (1854) 18 Fed. Cas. No. 10,243. Not of counsel to either party. The objection that the certificate of the magistrate before whom the deposition was taken did not state that he was not of counsel of either party, nor interested in the event of the cause, was overruled. Miller r. Young, (1812) 2 Cranch (C. C.) 53; Peyton r. Veitch, (1816) 2 Cranch (C. C.) 123. The notary before whom the deposition was taken having certified that he was not counsel or attorney for either of the parties to the suit, it was held that the omission of the words, that I am not interested in the event of the suit," was not sufficient to invalidate the deposition, especially as it ap 66 |