
    Tilman Dixon’s Lessee v. Steele and Williams.
    [Depositions.— Variance between Caption and Commission.]
    Appeal from the Circuit Court for the county of Montgomery. In ejectment.
    One point was, that a deposition of Prince was obtained * upon production of a notice proved in open court before the clerk, and by him indorsed with the probate. The alleged cause for the objection is that it was exparte.
    
   Havwood, Judge.

That is the common practice. The objection ought not to prevail.

Another objection is, that the caption states it to have been taken in a suit between Dixon and these defendants, but not said to be an action of ejectment, nor between the lessee of Dixon and the defendants ; and therefore there was nothing to show that the evidence was taken in his ejectment suit, and it might be on another suit. The action is rightly named in dedimus, as between Dixon’s lessee and the defendants. It is stated that pursuant to a dedimus they have taken the deposition, not pursuant to the annexed dedimus.

Haywood, Judge. To presume a dedimus not annexed to have been that very one, by force of which the deposition is taken, is to presume strongly at least. But as it is stated to have been on a suit depending in Montgomery Circuit Court, and it is not shown that at that time any other suit answering this description was then depending in that court between Dixon and the defendants, it may, together with the actual annexation of the dedimus to the deposition, appearing with the latter, enable the court to presume that the suit in the deposition and in the commission is the same.

Therefore, the deposition was properly received and read in the Circuit Court.

By the court. Affirm the judgment.  