
    EDMUND CLAXTON, GEORGE REMSEN, CHARLES C. HAFFELFINGER, AND EDWIN C. ECKSTEIN vs. FRANCIS C. ADAMS.
    At Law.
    No. 10117.
    I. The objection to the admissibility of a deposition as evidence in a canse should be made by motion to suppress it before going into trial.
    II. Where the notice to take a deposition is entitled in the cause, and the caption is the same as in the notice, it appears to be no valid objection to such deposition that the names of the parties are not again set forth, either in said notice or caption.
    III. Where a deposition was taken of a witness residing out of the District, it seems it will not be suppressed because the party offering it did not prove that the reasons for taking it continued to exist at the time it was offered.
    This is an action on account, commenced in October, 1872. The issues were closed in the case, and in February, 1873, the the same were ordered on the then calendar (for January terra, 1873) by the court. In March, 1873, and while the said January term of court was still in session, the plaintiffs gave notice to the defendant that they would proceed to take the deposition of George Remsen, and other witnesses, on the 17th of March, 1873, before a United States commissioner in Philadelphia. This notice was entitled (as was also the deposition itself) Claxton et al. v. J. C. Adams, No. 10,117, at law, and was addressed to defendant’s attorney, and signed by the plaintiff’s attorney.
    No commission to take the deposition was issued by the court, but the same was taken in pursuance of said notice, and returned in the clerk’s office of this court on the 20th of March, 1873. The case came on for trial March 11,1874, and a jury was sworn to try the same.
    The plaintiff offered to read in evidence the deposition so as aforesaid taken, to which the defendant objected. The objection was overruled; to which ruling the defendant excepted.
    
      The deposition being all the evidence, judgment was given for the plaintiffs.
    The exception presents the question, whether the circuit court erred in overruling the defendant’s objections.
    
      James G. Payne, for plaintiff, urged the following points:
    The caption of the notice and deposition were such that there could be no uncertainty about the case, and the deposition was properly allowed to be read. Buckingham vs. Burgess, 3 McLean, 368; Merril vs. Dawson, Hemp., 563; and, also, Goodyear vs. Vosburg, 41 Howard, (N. Y.,) pr. 421.
    These objections should have been made before entering upon the trial of the cause. This is the invariable rule where the ground of objection is disclosed by the deposition. Where there is time and opportunity to move for a suppression of the deposition, an objection to it will not avail on the trial. The proper way to exclude the deposition was by motion to suppress. 1 Tidd’s Practice, 812; York County vs. Central Railroad, 3 Wallace, 107, 175; Wynans vs. New York and Erie Railroad Company, 21 How., 88; Toledo, &c., vs. Baddely, 54 Ill., 101; Robinius vs. Liste, 30 Ind., 142; Irby vs. Kitchell, 42 Ala., 438.
    The objection made in the fourth point of the defendant’s brief was not made at the trial, nor does it appear in the bill of exceptions, and it is not, therefore, properly before the court for review. It is, however, fully met and disposed of by Greenleaf, in his work on Evidence, vol. 1, sec. 323, and note 1. (See, also, Patapsco Insurance Company vs. Southgate, 5 Pet., 604; Pettibone vs. Derringer, 4 Wash., 215; 1 Starkie on Evidence, 277.)
    
      John N. Oliver for defendant:
    It is contended that the deposition so taken and offered to be read should not have been admitted, for the reasons —
    1. The notice was given and .the deposition taken during the term of the court at which the cause was set for trial. Allen vs. Blunt, 2 W. & M., 122.
    2. That it did not appear, either in the caption of the notice or the deposition, that the notice was given or the deposition taken in this cause. Peyton vs. Veitch, 2 Cr. C. C., 123; Waskern vs. Diamond, Hemp., 701; Allen vs. Blunt, 2 W. & M., 122.
    3. “In the caption to a deposition the parties must he correctly described; and, in order to this, the Christian and surnames of the parties, both plaintiff and defendant, must be set forth. It is not a correct or accurate description of the parties defendant to name them ‘ Seneca Smith and others.’” Haskins vs. Smith, 17 Vermont Repts., 268.
    4. The practice in the United States courts has been, when a deposition is taken under the judiciary act and it is not proved by the party offering it that the reasons that existed for taking the deposition still exist at the time it is offered, the deposition will be rejected, or the case continued for the production of the witnesses or retaking of the deposition. Waskern vs. Diamond, Hemp., 701; Chief-Justice Marshall’s Opinion in the Thomas & Henry, Fletcher and Parker, Claimants, vs. The United States, 1 Brockenborough, 367.
    It is submitted that the chief-justice erred in admitting the deposition. A new trial should be granted with costs.
   Cartter, C. J.,

delivered the opinion of the court:

The objection to the admissibility of a deposition as evidence in a cause should be made by motion to suppress before going into trial. The objections in this case, therefore, came too late, even if they would have been good on a motion to suppress; but if called upon to pass upon the sufficiency of the objections, the court is inclined to the opinion that the same are not well taken. Judgment affirmed.  