
    
      Oakland Circuit Court.
    
    CHARLES D. MILLERD vs. ORESTUS MILLERD.
    
      Deposition — Certificate as to Notary’s Official Position.
    
    The requirement of Act 210, Session Laws of 1879, that the clerk of the principal court of record should certify to the official position of the Notary of another State or Country before whom a deposition is taken, is matter of substance, and is not waived by failure to give-the notice of objections to matters of form named in Circuit Court Rule No. 51.
    Motion to strike deposition from the files.
    Defendant gave the statutory notice of the taking of the deposition of one Robert Allison, before á Notary .Public in Ontario, Canada. The deposition was taken, plaintiff not appearing.
    Due notice of the filing of the deposition in the office of the Clerk of the Circuit Court was served upon plaintiff’s attorney. Eleven days afterward plaintiff’s attorney entered a special motion to strike the deposition from the files, on the ground that there was no certificate of the clerk of the principal court of record of the county where the deposition was taken, or other principal county officer, showing the official character of the pretended Notary. (Act No. 210, Session Laws 1879.)
    
    The deposition was certified and returned under the hand and official seal of the notary regularly.
    
      Defendant resisted the motion on the ground that the objection came too late, and that the defect was waived under Circuit Court Rule 51. Also on the ground that the Notary held his office for life, had an official seal by Statute, and that no County officer had any record of his appointment.
    
      Thos. J. Davis for Plaintiff.
    
      'Elliot R. Willcox for Defendant.
   The Court,

Stickney J.,

Held: That the lack of the certificate was matter of substance, and not of form; that Rule 51 did not apply, and that the objection to the deposition might have been made on the trial without motion or notice.

Motion Granted. 
      
      Rule 51 reads as follows: “The party taking any deposition shall, upon the same being reeeived and filed by the clerk, give notice thereof to the opposite party. All objections of form to any such deposition shall be deemed to be waived, unless the same shall be filed in writing and served on the opposite party, within two days after such notice.”
      As to form see
      4 M., 554.
      11 M., 213.
      12 M., 241.
      18 M., 387.
      Depositions taken de bonis non, when not to be read. 20 M., 11.
      Objections taken before a Commissioner must be raised when deposition, is offered in evidence, or they will bo deemed waived. 23 M., 56.
     