
    Brand, Executrix, vs. Butler.
    Depositions, when rejected.
    
    1. Under It. S., ch. 137, sec. 53 (Tay. Stats., 1601, § 78), and prior to the act of 1867-(Tay. Stats., 1602, § 79), a prn'ty to an action could have his deposition taken, to he used therein, only in case he resided out of the state, or more than thirty miles from the place of trial.
    2. A deposition of the plaintiff in this case was taken before the passage of the act of 1867, upon a notice which did not state the reason for taking it; hut the certificate of the justice before whom it was taken, states that the reason was, that the witness was about to leave the’ state, and not to return, etc. The defendant did not appear at the taking thereof, nor otherwise waive his rights. Held, that the deposition was properly rejected.
    3. Sec. 4, ch. 267, Laws of 1864, which provides that “an unimportant deviation from any direction or law relative to taking depositions shall not cause any deposition to he excluded, where no substantial prejudice would he done to the opposite party,” does not apply to a case where there was no authority to take the deposition at all.
    APPEAL from tbe Circuit Court for Fond du Lac County.
    This action was brought by William B. Brand, tbe plaintiff’s testate, in bis life-time, to foreclose a certain mortgage owned by him and executed by tbe defendant, upon wbicb a balance is claimed to "be due and unpaid. It is admitted that the testator discharged the mortgage of record, and delivered the same, together with the note which it was given to secure, to the defendant; hut it is claimed that this was done through a mistake in the computation of the amount due thereon, by means of which the testator was led to believe that the debt secured by the mortgage was fully paid, when, in fact, a large sum remained due and unpaid thereon. After this action was commenced, the deposition of the testator was taken, to be used therein, before a justice of the peace of EondduLac county, on notice which fails to state the reasons for taking such deposition. The certificate of the justice appended thereto, states that the reason for taking it was, “ that the said witness, Wm. B. Brand, was about to leave the state not to return in time for the trial of said action.” The defendant did not appear at the taking of such deposition. The same was taken November 24th, 1864. This deposition was offered in evidence by the plaintiff, but certain objections taken thereto in writing, on behalf of the defendant, before the commencement of the trial, were sustained by the court, and the deposition was rejected.
    The court found that there was no error in the computation or accounting of the amount due on the mortgage, and gave judgment for the defendant for costs; from which the plaintiff appealed.
    
      Gilht & Taylor, for appellant.
    
      A. M. Blair, contra.
    
   Lyon, J.

Although considerable testimony was introduced upon the trial of this action, yet it is clear that the testimony which was received is insufficient to prove that the computation, upon the faith of which the testator discharged and surrendered the mortgage in question, was erroneous. This was frankly conceded by the learned counsel for the appellant, on the argument of the cause in this court. Hence the judgment of the circuit court should not be disturbed, unless the deposition of tbe testator (wbicb tends to sbow tbat sucb computation was erroneous) was improperly rejected.

Several specific objections were taken to tbe deposition, one of wbicb was, tbat tbe statutes of tbis state did not, when tbe same was taken, authorize tbe taking of tbe deposition of a party on bis own bebalf merely because sucb party was about to leave tbe state not to return thereto in time for tbe trial of tbe action. We think tbat tbis objection must prevail. When tbe deposition was taken, tbe only authority for taking tbe deposition of a party on bis own bebalf, was given by R. S., 1858, ch., 137, Sec. 53, wbicb provided as follows: “ Any party to an action or proceeding who resides out of. tbis state or more than thirty miles from tbe place of trial, may have bis deposition taken to be used on sucb trial, and in tbe same manner and subject to tbe same rules, as is provided by law for taking tbe depositions of other witnesses.” Tay. Stats., 1601, § 78. Tbe enactment of tbis section shows tbat tbe legislature, when it allowed parties to actions to become witnesses in their own be-balf, did not intend thereby to place them on tbe same footing with witnesses not parties, in respect to tbe right to testify by deposition, but only to allow sucb parties to give their depositions in tbe two cases specified in tbe section. Hence a party to an action who resided in tbis state and within thirty miles of the place of trial, could only be a witness in bis own bebalf by appearing and testifying on tbe trial. In 1867, and long after this deposition was taken, tbe law was changed, and parties were placed upon tbe same footing as other witnesses as regards tbe taking or giving of their depositions. Tay. Stats., 1602, § 79. Tbis statute does not, however, affect depositions taken before tbe enactment thereof.

Tbe deposition having been taken without authority of law, and tbe defendant having entirely disregarded tbe notice of tbe taking thereof, as be lawfully might, and having abstained from cross-examining tbe deponent, tbe deposition cannot be saved under tbe provisions of tbe law of 1864, ch. 267, sec. 4, for tbe reason tbat it cannot be correctly said tbat tbe taking of this deposition was only an unimportant deviation from tbe directions of tbe law in tbat behalf. Neither can we say tbat tbe defendant would not be substantially prejudiced by the admission of tbe deposition in evidence. Tbe law above mentioned was evidently intended to cure mere formal defects in certain cases, in tbe taking of depositions, and not to render depositions taken without authority of law admissible as evidence. Tbe provision is as follows: “ An unimportant deviation from any direction or law relative to taking depositions, shall not cause any deposition to be excluded where no substantial prejudice would be done to tbe opposite party.”

These views render it quite unnecessary, to notice tbe other objections to tbe deposition of tbe testator.

By the Court. — Tbe judgment of tbe circuit court is affirmed.  