cited. The court, therefore, cannot consider on this demurrer the question as to whether the plaintiff was acquitted or found not guilty of the criminal offense for which he was arrested, asset out in the declaration, under the plea of the Illinois statute of limitations. The demurrer is therefore overruled as to all the counts, and the defendants ruled to plead to the merits of the case within 20 days.
STEWART et al.
(OirCUtft Oourt. D. South Oarolina. January 21, 1890.)
DEPOSITIONS-L-mORSEMENT ON ENVELOPE-WAIVER OF IRREGULARITIES BY STIPULATION.
The envelope containing a deposition was sealed with seals bearing the notary's stamV, but not his signature, was not indorsed with the name of the cause, and the only mdication that it was mailed by the notary was a request to return to him if not called for. It was directed to the justice of the circuit (',ourt, and was opened on its receipt. Held, that any irregularities were waived by a consent to'the pub. lication and OpeniDIr, "without prejudice to any objections to the inclosed deposi. tion other than relating to publication and opening, which is hereby waived. "
SAME-CEBTtll'ICATE-INTEREST OJ!' NOTARY.
Where the notary certifies that he is not attorney for either party, omission to certify that he is not interested in the event of suit is not sufficient caus!l to sup. press the deposition, where it appears that, by cons!'lnt, the testimony was talren in short-hood by a disinterested person. ' Where a deposition is taken after full notice of time, place, and person, it is not necessary to attach the notice under which it was taken. It is not necessary' that the certificate of the notary should state that he retained the deposition until it was mailed.
SAME-FAILURE TO ATTACH NOTICE.
SAME-RETENTION BY NOTARY UNTiL MAILED.
CONTINUANCE-ABSENCE OF WITNESSES.
In 'an action for ice sold .continuance will not be granted for absence of the masters of the vessels which brought it, who are said to be materialwitnElsses as to its quantity and quality, where the affidavit shows search in. several ports, but does not indicate when and where they will be heard from again, espElciallyas the mate, and not the master, usually inspects the cargo. Leave to amend by striking out an admission of partnership betWeen plaintifts, and inserting that defendant has no information on which to form a belief on that point, will not be granted where defendant has been requirEld to answer under terms.
Buist and John Wingate, for plaintiffs. Hyde and G. W. McCormack, for defendant.
ON MOTION TO SUPPRESS DEPOSITION.
SIMONTON, J. On 18th December, 1889, the attorneys for plaintiffs gave notice to the defendant's attorneys of their purpose to examine before a notary, at Bangor, Me., certain witpesses residing more than 100 'miles from the place of trial, to-wit, at Bangor. The acceptance of service of this notice was given by defendant's attorney on said 18th Decem-
0n 4th January, 1890, a 'package was receive,d by mail, addressed Circuit Court, Fourth Circuit, District of to the " Honorable Justice of South Carolina, Charleston,.s.,Q., U. S. A." It was sealed with three seals, and had indorsed on it in writing, "If not citl1ed for in ten days" l'.eturn to Charles D.Croshy,· Notary Public, Bangor, Maine," but ing else appeared on the package 1!howing that itbelqnged to any ease in this court. Upon its receipt in the daily mail of the court the cover of the package was opened by one of the judges of the court. As soon as the opening of the package disclosed what appeared to be a depositiou, it was at once closed, and placed in the custody of the clerk, with for plaintiffs and defendant were notice of its chara0ter. The sent for on the same day, andth'estate of facts made known to them. The plaintiffs' attorneys on 4th January, 1890, gave a four-days notice in writing to the defendant's8ttorneys of a motion to open and publish tpjsdeppsition, and fQrgreater certainty, it is supposed, this notice contained in full the notice on wHich the deposition was taken. On 8th the day on which the motion was fixed for a hearing, the defendant'sattorneys, with the,plaintiff's'll.ttorneys, entered into thisstipulation, ot;l'the back of the notice, to 'Open and publish: United states of to the publication and log of the depositions within referxed to, without prejudice to any objections to inclosed deposition other than relating to publication and opening, which tS,herebY waived." .. .. '; Very shortly after this the his attorneys.. The change was made on the record. Motion is now made to suppress this dep:, osition. There are seven grounds (1) That the said deposition iil court, .but was opened out of did not remain under Court,previdustoJanuRry 8,'1890. Depositions can be opened out of court, on motion of one party, against the objection of the other party. u. S. Tilden I 10 Ben. 170·. ,This 6xception, however, must refer to envelope by 'thE! 'jUdge. (2) That the envelope containing saig. dep9sition w.as no1;,indorsed with the name of the cause in which it was taken. (3) That there was no indorsement upon said encontaining said deposition. It must yelope of the mailing of the J>e supposed that this means the mailing of the package by the notary public in person. The package'itself showed that it was mailed, and that it was mailed at the instance of the notary public,-"If not called containing said deposition was not propfor," etc. (4) That the erly sealed by said notary ,and there is no signature of the notary across the seals. ,The three seals, however, bear the notarial stamp of the notary. The first exception was caused by the irregularities complained of in the secon4. third, RIlCIJourth exceptions. Whatever weight they may have bEJ.en entitled to, (and the first three are grave,) the stip.uli:t:tion·signedbythe attorneys on each side on 8th January seem to have 1Vliived them. That stipulation.consents to the opening and publication tof the deposition without qua\ification, except "without prejudice to any '\)bjectionto the inclosed depositiou;"that is to say, "We¢onsent to the -removal of the inclosing envelope, and the withdrawal of the manuscript
·\' iSTEWART ".TOWNSEND.
prejudice t ho'Wever,to anYobjection.to the inclosed deposition,"-that is, the manuscript within. And this is emphasized by adding, "other than that relating to the ,publicatiouancl opening, which is hereby waived." The stipulation is not in the most artistic style, but it means this or nothing: "We waive all objection to the package. Let it be opened, and its contents published. We do not waive anyobjection :which the depositions, after they are opened and published, disclose. 'l'hese.first four exceptions relate to the package, the outer cover of the deposition, and are waived." Let .us examine the three others: (5) That in the certificate of the notary public, taking and. returning the deposition, there is no statement that.the said notary public was not interested in the event of the suit. The certificate of the notary is in these words: "I also certify that I am not of counselor attorney for either of the parties to the causej "and omits the words, "that I am not interested in the event of the suit." In Miller v. Young and PfJYton v. two cases in 2 Oranch, O. O. 53, 123, this is held to be 110 necessary part of the certificate. In Coal Co. v. AfOtCWell; 20 Fed. Rep. 187, .the commissioner failed to state "that he wa!;! pot of counselor attQrney for either' of the parties, and that he wall not interested in the event of the case." Judge BREWER held that it must appear affirmatively on the face of the certificate that the officer taking the deposition was disinterested. When we examine the certificate we find that, by consent, the testimony in this case was taken in short-hand, and then engrossed on a type-writer. The notary certifies that he employed a disinterested person to do this, under his direction. The certificate also shows that the witnesses were examined by an attorney for plaintiffs. Here, then, we have a commissioner not connected with the case as attorney for either party j a clerk employed by consent to do the important part of his work, taking down the testimony, who is certified to be wholly disinterested in the casejand the questions propounded by a third person. If the deposition be rejected, we would indeed cling to the letter. It is true that this mode of taking testimony is in derogation to the common law, and the !ltatute must be strictly complied with. Bell v. Morrison, 1 Pet.351. But it seems to me that, onthe whole, this certificate on this point is sufficient. (6) That the notice under which the said deposition was taken is not annexed to the said deposition,return, andoertificate of the said notary. I know no rule prescribing this in cases in which the testimony of witnesses is taken, after full notice of time, place, and person. At the utmost, it may be needed to identify the deposition. This has been fully met by the stipulation indorsed upon and referring to a notice containing all the words of the original notice for taking the deposition. (7) That the certificate of said notary does not state that said deposition was retained in his hands uutil mailed. This could not appear in the certificate sealed up in the commission, for it would certify as to something occurring after the package was sealed. It would be an excellent practice if the commissioner would certify something to this effect on the package just the instant of mailing. But I see nothing in section 865, Rev. St.,
quiring it. The exceptions overruled, and the motion refused. Defendant on the same day moved for a continuance.
ON MOTION FOR CONTINUANCE.
Deiendant for a continuance on the ground of the absence of material witnesses, whose llames and whose testimony he discloses. It seems that the action is for certain ice sold by plaintiffs to defendant. His defEmse is failure of consideration in the quantity and quality of the ice. The two witnesses are masters of vessels which brought the ice. The affidavit states efforts made by defendant to ·find them in several ports, and his/failure to hear of them. No sort of prospect is held out when and where they will be heard of again. Continuance on this ground would make indefinite postponement. Besides this, masters of vessels seldom are called upon to inspect cargo minutely. It iSBot delivered under their supervision, as a general rule. The mates do this. If anybody knows the defects of the cargo, defendant does. He is a man of character, and a competent witness. He must know who of his employes handled the ice. They know it better than any mariner who saw it only in its passage to and from the vessel. Motion refused. Defendant, failing in his motion for continuance, asked leave to amend.
ON MOTION FOR LEAVE TO AMEND.
The defendant, upon affidavit, moves to amend his answer in two respects.· In the answer now on file he admits the copartnership be... tween set forth in the first paragraph of the complaint. He asks leave to amend by striking out this admission, and by inserting that he has no information on which to form a belief on this point. When this case was before this court in Columbia, it appeared that on the last day for answering the defendant gave notice for secul'ity foreosts, and, appearing on the day upon which plaintiffs had given notice they would a$k judgment by default, he resisted the judgment on.that ground. The plaintiffs at once offered to put in security, and have done so. Rules of court are intended to expedite busilless, and the business of courts is to 'terminate litigation. The provisions of the rules cannot be wrested into means of delay. The defendant was required to file his answer, and., not being prepared to do so, was put on terms. It was agreed that the case should be brought for trial on the first Monday in January, at Charleston, the defendant to answer within seven days. This he did, and the answer in question is the one it is desired to amend. If the defendant had alleged that since answering he had discovered that no partnership .existed between plaintiffs as is alleged, I might listen to the amendment. But when it is made so apparent that the amendment is to secure delay and by a party on terms, it must be and is In the original answer it is stated that plaintiffs in the contract sued upon had so conducted themselves as to damage the defendant to the extent of $2,500. He now proposes to put this into the shape of a counterclaim. It is allowed. Letthe amendment be made forthwith.
KARTIN V. BALTIMORE
MARTIN V. BALTIMORE
& O. R. CO.
October 18, 1889.)
(Circuit Court, D. West ViryinUl.
RAILROAD COMPANIES-INJURIES TO EMPLOYES-CONTRIBUTORY NEGLIGENOE.
An em)'loye of a railroad company, who is being transported by- the company from one place of employment to another, cannot recover for inJuries received while sitting on a brake-wheel between the cars, though the train in which he is riding is run into through the negligence of other employes.
Where an employe of a railroad company becOmes a member of a relief association, and as a condition of membership, and in consideration of the contributions of the railroad company to said association, and of the company's guaranty of the payment of the benefits of the association in case of injury, signs a contract by which' he releases the company from liability by reason of any accident that may hallpen to him while in the company's employ, an action will not lie against the company, where, both before and after bringing action, he receives money from the association on account of the injury, and gives receipt releasing and discharging the company from all' claims for damages. .
At Law. Action to recover damages for an injury alleged to have been caused on the 22d of May, 1887, at Bay View station, in Baltimore county, Md., by negligence of defendant's servants. The plaintiff was in the employment of the defendant in its telegraph department at the time of the accident, and had been in that service from the 19th day of November, 1886, and on the day of the accident was in the camp train at Bay View,ob. his way, with the other men in that service, to Chester, Pa. The camp cars in which the plaintiff was housed were on a,track in the railroad yard, and were run into by a freight train, going into a switch which had been improperly left open. It was the duty of the conductor and brakeman of the train which caused the accident to see that the switch was in proper shape and. situation when approaching it, and not to rely upon others to attend to it. The facts showed that the plaintiff, with some of the other persons in the same camp, were sitting on the brake-wheel on the platform between the cook car and lodging car of the camp train at the time the collision occurred, and these were the only persons hurt by it, being jammed in between the bumpers of the two. cars mentioned. The men in the cars were not hurt in the least degree. At the time the plaintiff went into the service of the defendant he was under age, and, by the written consent and authority of h,is father, plaintiff was admitted into the company's service, and became a member of the Baltimore & Ohio Employes' Relief Association. The train causiug the accident was not running more than four miles per hour, and did not hit the camp cars hard enough to damage' the one it struck the slightest. The plaintiff himself testified that he was sitting on the platfqrm,' as stated, and no persons other than those with him on the platform were injured in the collision. He also testified that he was at the time 'oithe accident in the employment of the company, and on his way to reSume work at Chester, in the construction of telegraph lines for the company. The plaintiff's declaratioll?Ontains four counts; the first three alleging that.he.was a passenger, and was b,eing carried by the defendant as such.