
    Prather v. Pritchard.
    Tender.—Costs.—When a tender has been made and refused before suit brought, and is afterwards kept good; if the plaintiff does not recover more than the sum tendered he must pay costs.
    Depositions.—Certificate.—It is not necessary that the names of the witnesses examined should he stated in the certificate of the officer taking the deposition. It is sufficient if they are referred to “ as the above named deponents.”
    Same.—Service of Notice.—The service by copy of a notice to take depositions is good, under the statute.
    Same.—Peace of Taking.—Where the adverse party is present at the taking-of a deposition, and consents to the taking at a given place, ho cannot afterward object to the sufficiency of the notice as to the place of taking.
    Witness.—Memorandum.—A witness may refresh his recollection by reference to a- memorandum made by him at the time of the transaction about which he is testifying.
    Deposition.—Revenue Stamp.—The certificate of the officer taking a deposition is not subject to stamp duty.
    APPEAL from, the Jennings Circuit Court.
   Elliott, J.

This cause originated before a justice of the peace, and was a suit by the appellant against the appellee. Upon account. The justice rendered judgment in favor of the appellant for $18 63-J, and against him for costs. In the Circuit Court a jury was waived, and. there was a finding for the appellant for $15, “ and that prior to the commencement of the suit the defendant made a legal and proper tender of $15 to the plaintiff on account of said indebtedness, and paid the same into court before the trial” before the justice, and that the tender had been kept good, and was then in the hands of the clerk. A judgment for $15 was rendered for the plaintiff, and costs adjudged against him.

The judgment for costs was so clearly right that no discussion of the question can be necessary.

The court refused to suppress the depositions of James McCormick and others. The objection urged was that the justice before whom they were taken did not set out the names of the witnesses in his certificate. There is nothing in the objection. Their names were properly stated in the depositions, and they are referred to in the certificate as “the above named deponents.” This was sufficient.

The court overruled a motion to suppress the deposition of one Henry G. Atchison, taken by the defendant below. Uotice of the time and place of taking the deposition was served on the adverse party by delivering to him in person a copy of the original notice. The service is objected to on the ground that the notice should have been served by reading, and not by the delivery of a copy. Section 268 of the code, (2 G. & H. 175) in reference to depositions, provides that “ The notice may be served in the same manner, and by any iDerson authorized to serve a summons for a witness.” The proper mode of personal service of a summons on a witness is by reading, but if the witness is temporarily absent, the summons may be served by leaving a certified copy, thereof at his residence. The code provides that, “ an unimportant deviation from any direction relative to taking dépositions shall not cause any deposition to be excluded, where no substantial prejudice would be done to the opposite party.” 2 G. & H., § 272, p. 180. It is not claimed in the case before us that the appellant suffered any prejudice from the service of the notice of the taking of the deposition by copy, instead of by reading it to him. Indeed it is difficult to see how any substantial prejudice could result to him from a service of the notice by copy. It placed in his possession written evidence of the time when and place where the deposition would be taken, to which he could refer for certainty, instead of being left to depend upon his uncertain- recollection, from having heard the notice once read. There was no error in refusing to suppress the deposition for that cause.

The court overruled a motion to suppress the deposition of one George N. Tucker. The objections urged are, 1. That the officer’s certificate does not show whether or not the adverse party attended. 2. That the notice did not state the place where the deposition was to be-taken. The first objection is not true in fact. The notary before whom the deposition was taken expressly certifies “that the plaintiff, (the adverse party,) was present in person át the taking of said deposition.”

The notice stated that the deposition would be taken “before Smith Jones, or some person authorized to take depositions, in the town of Columbus, county of Bartholomew” &e. It was not sufficiently certain as to the place where the deposition would betaken; but it appears by the officer’s certificate that it was taken by Smith Jones, a notary public; that the parties were both present, and that by their agreement the deposition was taken at the office of John Muttony, in the town of Columbus. The plaintiff having been present, and having agreed upon the place where the deposition should bo taken, could not afterwards object to the sufficiency of the notice in that respect.

The appellant moved to suppress the answer to the fifth question in the deposition of one Willis Polk, taken by the defendant. The court overruled the motion, and this ruling is also complained of. The witness had testified in reference to certain poplar lumber involved in the suit, and was asked how much there was of it. To which he answered, about 5,995 feet. On cross-examination the witness admitted that he stated the number of feet from a memorandum held in his hand, and stated further that he had measured the lumber and made the memorandum at the time of the measurement; that aside from the memorandum he could not recollect the exact number of feet, but that, independent of the reference to the memorandum, he did recollect that there Avas about 6,000 feet of it. The evidence was clearly proper, and the court did right in overruling the motion to suppress it.

"When the motion was made to suppress the depositions, . there was no revenue stamp attached to the certificate of the officer before whom a part of them were taken, which was one of the causes urged for suppressing them. The court permitted the defendant to attach the stamp, and then overruled the motion to suppress, and this ruling is also assigned as error.

Section 158 of the act of Congress, “to provide internal revenue to support the government,” &c., approved June 30th,. 1864, as amended by the act of March 3, 1865, (Statutes at Large, p. 481,) provides “ That hereafter, in all cases whore 'the party has. not affixed to any instrument, as required by section 151 of the act of June 30th, 1864, or the schedule marked B, thereunto annexed, the stamp thereby required to be thereunto affixed, at the time of making or issuing the said instrument, and he or they, or any party having an interest therein, shall, he subsequently desirous of affixing such stamp to said instrument, he or they shall appear before the collector of'the revenue of the proper district, 'who shall, upon the payment of the price of the proper stamp required by law, and of a penalty of $50, and where the whole amount of the duty denoted by the stamp required shall exceed “the sum of $50, on payment also of interest at the rate of six per cent, on said duty .from the day on which such stamp ought to have been affixed, affix the proper stamp to such instrument, and note upon the margin of said instrument the date of his so doing* and the fact that such penalty.has been paid, and such instrument shall thereupon be deemed and held to be as valid to all intents and purposes as if stamped when made or issued.” It also provides that the collector of the revenue may, in certain cases, remit the penalty. This amendatory act was in force' when the depositions in the case at bar were taken. It is evident, from this provision of the act of Congress, that the revenue stamp was not properly attached to the officer’s certificate, and. .the question presented must be regarded as though no stamp, had been attached. "We are therefore called upon to determine .whether, the act of Congress referred to requires that the official certificate of the officer to a deposition taken before him, to be read in evidence in a suit pending in a court of the State, shall be stamped with a revenue stamp.

Schedule B, of the act of June 30th, 1864, (Statutes at Large 298,) enumerates a variety of certificates subject to stamp duties, all of which are certificates representing values, or which constitute the evidence of a legal, right. To this enumeration is added, “ certificate of any other description than those specified, five cents.” It may be conceded that this language is sufficiently broad to cover the officer’s certificate to a deposition, if the act and the schedule contained1 no other provision in words, or by legal inference, forbidding such an application of it. . The schedule contains a separate heading, “legal documents,” under which a stamp duty of fifty cents is required on the writ, or other original process, by which any suit is commenced In any court of record, either of law or, equity, or where the amount claimed in a writ issued by a court not of record is $100 or over. Upon every confession of judgment, or cognovit, for $100 or over, (except in those cases where the tax for the writ of a commencement of a suit has been paid,) fifty cents. Writs or other process on appeals from justices’ courts, or other courts of inferior jurisdiction, to a court of record, fifty cents. On a warrant' of distress, when the amount of rent claimed does not exceed $100, twenty-five cents. When the amount claimed exceeds $100, fifty cents. Writs, summons, or other process issued by, and returnable to, a justice of the peace, or by any police or municipal court having no larger jurisdiction as to the amount of damages it may render than a justice of the peace in the same State,. are exempt from stamp duties. The schedule also exempts from such duties the bonds required in legal proceedings, and affidavits in suits or legal proceedings.

From a careful examination of the act of Congress, and schedule 23, we think it was not the intention of Congress to impose a stamp tax on any other- process or proceeding, in suits pending in the state courts, than those enumerated in schedule B. Eo tax is imposed on depositions, and the certificate of the officer before whom they are taken is an act essential to their validity, and in that sense forms a part of them. They aré legal documents, and constitute a part of the legal proceeding, and we think the officer’s certificate is not subject to a stamp duty. The court, therefore, did not err in refusing to suppress them for the reason that the officer’s certificate was not stamped.

F. T. Iiord, for appellant.

The judgment is affirmed, with costs.  