separate section; not merely is it a. limitation with respect to a particular class'ofbbligations, but the tenor of the section indicates that a special contract with special liabilities is contemplated. The direction of the court seems a prerequisite 'to any action, and when the nature of the liability of sureties is considered, it seems clear that the legislature of Wisconsin intended by this section a special liability bounded and limited in a special'way, and that a contract of suretyship entered into under such a statute must be held to have incorporated into it all those provisions of limitation. I have no doubt that, logically, that is a fair and true construction of the statute; alid while it conflicts with the general role as to limitations, yet I think my brother SHIRAS has shown suffi. cient reasons to justify us in holding it, outside of the general rule. I have no doubt that the death of the guardian is a. discharge within the meaning of the section. I therefore' ooncur with him in sustaining the demurrer.
(Diatrict (Jourt, D. South Carolina,. July 18, 1888.) Under Rev. St. U. S. § 864, requiring a deposition to be reduced to writing ;by the officer taking it, or by the witness in the presence of Buch officer, and ,by no other person, the irregularity of taking the in a continuous narrative' form. on a. type-writer, will be waived by appearance and cross, examination by the adverse party. who is also an attorney of record in the case, without objecting to the form of the deposition or the use of the type· writer. 2. SAME-CERTl:FICATE. Part of such testimony being in writing, and the certificate of the officer not showing whos,e writing it was,. the deposition should be suppressed as the exceptqr could not be deemed, by appearing, to have waived an irregularity . wb,ichwas not committed until after the testimony was taken. 8. SAME-SUPPRESSION-'-RE- EXAMINATION. Such omission not being the fault of the party in whose interest the depo sitio,ns were taken. he should be allowed an opportunity tore-examine the witn'esses whose depositions were suppressed.
FORM ON TYPE-WRITER-WAIVER OF OBJECTION.
In Bankruptcy. Motionto suppress deposition. Mitchell Smith, for assignee. J. P. K. Bryan, for bankrupt. SIMONTON, J. A deposition de bene esse after due notice was taken in this case before Robert R. Shellaberger, Esq., a nou1ry public, in Washington, D. witness examined was William E.Earle, Esq., an attorney on this record, for A. Blythe, assignee, resident in Washington. At his examination William M. 'l'homas, Esq., who is also an attorney onthe record, was present. The package containing the deposition was sent by Jllail to the clerk of this court. The, cause was under reference to a speCial master. An order of court was obtained, and the deposition
IN BE THOMAS.
was opened. Thereupon the present attorney for Mr. Thomas moves to suppress the deposition for the reasons stated below. It appears that the testimony in chief of Mr. Earle is a continuous narrative, taken down on a type-writer, numbering 13 pages of law. cap At the end of it, there appears in manuscript, in the hand, apparently, of Mr. Shellaberger, the notary public, eight objections made by Mr. Thomas to the testimony of Mr. Earle. The first objection goes to the whole testimony as irrelevant, not responsive, and not being the besi evidence. The other objections are to certain specified parts of the testimony. No objection was made either as to the form of the testimony, or to the manner in which it 'ras submitted and presented. Then follows the cross-examination of Mr. Earle by Mr. Thomas, and his examination in reply, all in manuscript, in the handwriting, apparently, of Mr. Shellaberger. The first objection is to the testimony taken on the typewriter. It is not in the handwriting of the notary, nor of the witness, 8S is required by section 864, Rev. St. There can be no question that depositions de bene MI/e, being in derogation of the common law, and having their sanction solely in the statute, must follow all the statutory requirements, .or in general they will be excluded. BeU v. MQlTiBon, 1 Pet. 351; Cook v. Burriley, 11 Wall. 659. When, the party taking the deposition has given .notice to the other party, who attends, and cross-examines the witnesses, all irregularities attending the taking of the deposition, or occurring during the examination of the witness, . not objected to at the time, are deemed to be waived. Shutte v. Thomp8on, 15 Wall. 151; Di'fl.8'!¥lorev. Maroney, 4 Blatchf. 416, 17 Myers Fed. Dec. 636. In this case Mr. Th9mas himself was present, Saw the stateIilent of Mr. Earle submitted, taken on the type-writer, examinedit, made objections to it in whole' and as to parts, but interposed no objection whatever to the fact that he submitted it in narrative and continuous form, prepared and takenona type-writer. This must be held to be a waiver of this irregularity. The second objection is to the form of the certificate of the magistrate taking the deposition. The certificate uses this language: "* * * , That the foregoing depositionw8s .by the said Earle given in my presence, and, when reduced to writing as so given, was by said Earle subscribed alld sworn to in my presence." The section 864, Rev. St., requires that the "testimony be reduced to writing by the magistrate.taking the deposition, or by himself, [the witness,] in the magistrate's presence, bY,no other person." In this case the part of the testimony inman'Uscript appears to be in handwriting of the magistrate. But there is no certificate of this. Were it certified we might overlook this objection under the cases of Van Nes8 v. Heineke, 2 Cranch, C. C. 259; Vasse v. Smith, Id. 31; Centre v. Keene, Id. 198, quoted in Desty, Fed. Proc.459. The objection fatal. The la.w requires a certificate that the act was complied with. Harris v. Wall, 7 How. 693. Inasmuch as the certificate Was made after Mr. Thomas had attended, and its contents could ,'hot have been known until the deposition was opened, hecanriot be held to have waived this defect. Nor is the defect purely formal. The stat-
\lte throws around the deposition every safeguard. The character of the officers authorized tv take it is liniited in number. All of them are officials under commission and sworn. 'fhe magistrate, after taking the deposition, must retain it himself until he delivers it with his own hand to the court; or, if he sends it, he must seal it up, and it must remain under his seal until opened in court. Thus every precaution is taken to preserve the integrity of the testimony, to assure the court that that which is reported is the exact testimony given by the witness taken down at the time in his presence. Without sucn assurance it is not testimony. In this case weare without such assurance. The terms of the act should .have been complied with, and such compliance certified to the court. The deposition must be suppressed. But in this instance, and in the instances of the two other depositions for the same party heretofore .suppressed on motion of Mr. Bryan, the reasons moving the court to grant the motion are based on the omission or carelessness or inexperi.of the magistrate. There was no fault on the part of the petitioner or of his counsel. Beside .this, the testimony so taken was to be used . before a master, who was ordered to take the testimony in the cause and report it to the court in aid of the court. It thus appears that there is testimony in existence. bearing on the issues in this case which is.. not before th.e court because of the conduct of others not of counselor parties in this cause. Can the court, with this knowledge, go on and try cause without such testimony, if it be within reach? Following the precedent set by Judge S'l'ORY, I will, under these circumstances, give the parties an opportunity of correcting this error. Leave is given to the parties in this case to re-examine by deposition the witnesses whose names are.in the depositions suppressed iQ this cause, provided that such depositions be taken before 1st of September next.
Circuit Oourt. No D.Oalifornia. July 81, 1888.)
A misrecital in the caption of an indictment of the date of its finding, it. reading "]885," for "lSSS," where from the whole record the error appears tobe merely clerical, is not fatal, as the caption is no part of the indictment. S.SAIIIE-REV. ST. U. S. § 1025. . . . Such error also 'comes within the purview of Rev. St. U. S. § 1025, which. provides that no indictment shall be deemed insufficient ·by reason of any defect in matter of form only, which does not tend to prejudice the defendant.
INDICTIIIENT-CAPTION-MISRECITAL OF DATE OF FINDING.
At Law, Motion to quash indictment. Jackson Hatch, U. S. Dist. Atty., for the United States. S. G. HilbIYfn,' for defendant. SAWYER, J. The caption of the indictment, commences as follows:. . "At a stated teim of the said court, hegi;m and hQlden at the city and