#### [MYERS, ET *AL. v.*ANDERSON’S HEIRS.]

Perpetuating evidence — depositions for recorded in sixty days — notice—certificate where no one interested is known — papers referred to — agent—evidence.

Depositions taken under the act of Feb. 1824, to perpetuate the testimony of witnesses concerning lands, may be read if recorded on the sixtieth day after taken, that 'being within sixty days.

Notice of such depositions is required to be given by the judges, to persons interested, if known and in 'the county, and if they certify that they know of no person interested in the county, they may be read. Notice is not required where they are unknown or reside out of the county.

‘ Where papers are referred to in such depositions, but are not recorded, that part of the deposition only, which refers to such papers, will be rejected, and the papers themselves muy be offered, as if never referred to rn the depositions.

An agent is a witness of his transactions as agent from necessity, being liable to either party, according to the circumstances.

Bill in Chancery to compel the specific performance of a contract for the sale of land. The contract had been made with Lytle, as the agent of Anderson — the agency was denied, its establishment defended on the ratification of the acts of Lytle by Anderson, and tiie proof of this was contained in depositions taken under the act of Feb. 1824, for perpetuating testimony in certain cases. 22 O. *L.*104. The whole case turned on the admissibility of that evidence, which was objected to:—

1. Because they were not recorded within sixty days.

2. Because no notice was given of the taking the depositions.

3. Because the witness Lytle, was incompetent.

4. Because the documents referred to are not filed.

*M. Marshall,*for tire complainant.

*Fishback,*contra.

Collett, C. J.

The depositions were taken in December 1830, and recorded in February 1831, on the sixtieth day from that of the taking. The act requires depositions taken under it relating to land, to be recorded in the office for recording deeds, in the county where the land lies, within sixty days. The recording in this case, was on the sixtieth day, and of course within sixty days, or before sixty days were completed.

2. The law requires the two judges taking the depositions, to cause every person *whom they know*to be interested or affected by the depositions, to be notified, *if within the county,*and if without, that the notice, under like circumstances, should be given to the attorney, if there be any. The judges certify that they did not know any person interested, nor their attorney, in the county. That is prima facie sufficient, and no effort is made to show it untrue in fact. It is however claimed, that the attorney of record in the ejectment suit in- Clermont county, should have been notified. The law does not require such notice, if those interested are out of *514the county where the .depositions are taken, or unknown. The reading of these depositions is provided for, and if the • law has been substantially complie'd with, however impolitic we may deem it, we cannot disregard it.

3. That Lytle was the agent who made the contract, .does not, as is supposed, disqualify him from testifying. From necessity agents are admitted — they may stand indifferent between the parties, liable to either, according to circumstances.

4. The omission to record the *papers referred to,*only vitiates so much of the deposition as refers to the documents, — the documents themselves may be introduced as independent evidence, as if no effort had been made to prove them.

Decree for the complainant.