
    Savage vs. Balch.
    The rulo requiring* that the party, offering* a deposition taken out of the State and not under a commission, must prove the official character of the person who took it, was made to prevent management and imposition, and to afford reasonable satisfaction to the court that the transaction was correct and fair.
    Therefore where such deposition was taken at St. Stephens, in New Brunswick, the adverse party living in the adjoining town of Calais, and attending the caption. without objection, the court presumed that he was acquainted with the person and official character of the magistrate, and admitted the deposition without other proof.
    in an action against the sheriff for the misfeasance of his deputy in the service of an execution, the declarations of the deputy are admissible in evidence against him.
    And where the deputy in such case had declared that the execution creditors had engaged to indemnify him, their testimony was for this cause held inadmissible.
    This was an action of trover, against the late sheriff of the county of Washington, for a yoke of oxen which had been taken by Ebenezer Reding, of Calais, bis deputy, and sold, under an execution in his bands against one James Flanders, in favor of Hamilton and Edgely. At the trial before Weston J. it appeared that the oxen once belonged to the plaintiff; and the principal question was whether he had sold them to Flanders. To this point the testimony was multifarious; and certain declarations of the plaintiff offered by himself, but objected to, were admitted in evidence, as part of the res gesta. But this part of the case it is unnecessary to state, as the opinion of the court upon it, confirming the decision of the Judge, settles no doubtful point, and contains no new illustration or application of any settled principle of law.
    In the course of the trial the plaintiff offered the deposition of one Anderson, which had been more than a year on the files of the court, and which appeared to have been taken before a magistrate at St. Stephens, in the British province of New Brunswick, Reding, the deputy sheriff, having been present at the caption. The defendant objected to its admissibility, for want of proof that the person before whom it was taken was a magistrate, ¿uly qualified to take depositions. But the Judge overruled the objection.
    The defendant offered the depositions of Hamilton and Edgely, the judgment creditors of Flanders, on whose execution the oxen had been sold; to the admission of which the plaintiff objected, on the ground of their interest in the suit; and to this point he proved that Reding, when he seized the oxen, being informed that the plaintiff claimed them, and that they probably were his, replied that he did not care about that, for he was indemnified by Hamilton and Edgely. Whereupon the Judge rejected their testimony.
    A verdict being returned for the plaintiff, the questions of law were reserved for the opinion of the court.
    
      Allen and Boutelle, for the plaintiff.
    
      Sprague and Preston, for the defendant.
   Mellen C. J.

delivered the opinion of the Court.

It is contended on the part of the defendant that the deposition of Anderson was improperly admitted, because, having been taken at St. Stephens, in the province of New Brunswick, not under a commission from court, there was no proof that the person before whom it was taken was a magistrate. Our rule requires such proof, where a deposition is taken out of the State, and not under a commission. But the question is whether the circumstances of this caso do not justify the admission of the deposition, according to the spirit of the rule, which was made to prevent management and imposition, and to furnish the court with reasonable satisfaction that the transaction was correct and fair. Now it appears that this deposition was taken near Calais, where Reding the deputy resides; and the fact is notorious that Si. Stephens is opposite to Calais. Besides, Reding attended at the caption, and enjoyed the opportunity for cross examination. This circumstance, in connexion with the local situation of Reding, raises a violent presumption that he was acquainted with the person before whom the deposition was taken, and also with his official character. Other proof on that head seems unnecessary, as it does not appear that any objection was made by Reding, who is the real defendant iti the present action.

As to the objection to the ruling of the Judge excluding the depositions of Hamilton and Edgely, the answer is obvious. It appeared to the court, from the declaration of Reding, that they had engaged to indemnify him against all damages by reason of his seizing and selling, on their execution against Flanders, the very oxen for the conversion of which the present action is brought. Of course they wore directly interested to disprove the plaintiff’s title, so as to protect themselves from liability to Reding, on their engagement to indemnify him.

Judgment on ihe verdict.  