#### Miller vs. McDonald.

If a party appears and cross-examines a witness whose deposition is being taken, or appears and *objects*to the questions put or the evidence given, he thereby waives all objections on account of any defect or want of notice, although he may have made an objection to the examination of the witness, on that ground, before the deposition was commenced.

Where it appears from the deposition that a portion of the testimony favorable to the party taking it, “was objected to,” it will be presumed that the objection was made by the adverse party, it being certified by the officer that such party *attended*at the taking of the deposition. The word “ attended,” as used in the statute prescribing the form of certificate to be annexed to a deposition, means some thing more than mere personal-presence; it signifies participation in the examination of the witness.

It must be presumed that the officer who took the deposition used the word in that sense, and his certificate that the adverse party *attended*is *prima fade*evidence of that fact.

To sustain an action or defense founded upon a warranty of soundness in the sale of a horse, it must be shown ciearly that the unsoundness existed *at the time of the sale.*

APPEAL from tbe Circuit Court for *Racine*County.

This was an action to foreclose a mortgage. Tbe defense was, that tbe notes secured by tbe mortgage were given in payment for a stallion, wbicb tbe plaintiff sold to tbe defendant, witb a warranty that tbe horse, was sound, and “ sure and perfect for stockand that tbe defendant bad sustained damages by a breach of tbe warranty, to an amount greater tban tbe notes. On tbe trial, tbe defendant offered in evidence tbe deposition of one Hotailing, wbicb was objected to for want of proper notice of its taking, and because it was taken at a place less tban 30 miles from tbe place of trial. Tbe deposition was taken in Burlington, Hacine county, but the witness stated that be lived in tbe county of Waukesha. One statement in tbe deposition, unfavorable to tbe plaintiff, was hearsay, and at tbe close of tbe statement was tbe following : “(This was objected to.)” Tbe certificate of tbe officer stated that the plaintiff attended at tbe taking of tbe deposition, and it was stated in tbe caption that tbe plaintiff’s attorney objected to tbe taking of it, on tbe ground that no proper notice bad been given. Tbe court admitted tbe deposition. Tbe proof as to tbe breach of tbe warranty is sufficiently stated in tbe opinion of tbe *674court. The judgment in the circuit court was for the de- „ -, , fendant.

*Paine &*Millet, for appellant.

*Boyce*& dole, for respondent.

May 15.

*By the Court,*

DixoN, C. J.

In my opinion the deposition of the witness Hotailing was properly received. The rule 'is generally, if not universally, well settled, that if a party appears and cross-examines, or appears and obj ects to questions •put or the evidence given by the witness, he thereby waives all objections which he might have urged on account of any defect or want of notice. 6 Watts & S., 46; 32 Maine, 179; -12 Ill., 267; 2 Bibb, 316. The rule is both rational and just. Having appeared and availed himself of the privileges . which the notice was designed to give, he ought not after-wards to be permitted to say he has not had them; and that the appellant appeared, or, in the language of the statute, *attended*at the taking of the deposition, is manifest in two ways. ■ First, it appears in the body of the deposition that he objected to a portion of the testimony given. It is true that it is not stated in words that he made the objection, but cireum- • stances show that it must have been made by him. It is conceded that he was present with counsel. No one but a party was interested or authorized to make the objection. The connection in which it occurs shows that it is such as •would most naturally come from him. The witness was • detailing mere hearsay statements in favor of the defendant. They were objected to. The defendant had no interest in objecting to them. If by any chance they could go before the court and jury, they were favorable to his cause. If • they could not, they in no way invalidated the residue of the -testimony. Again, if the objection came from the defendant upon an *ex parte*examination of his own witness, ■jyhy was it so carefully noted ? Why noted at all ? Certainly there was no proper motive for it, and it cannot be explained, except by attributing to the magistrate and to the defendant a degree of ignorance and stupidity which is almost incomprehensible, or by supposing that the defendant insisted upon it for the purpose of displaying his devotion *675to the cause of legal truth in checking his own witness when he was unconsciously passing beyond the bounds legitimate evidence. And if it is- to be accounted for on either of the latter grounds, it can only be done by attributing to them still another blunder, in putting that down as' an objection, which was in reality not an objection at all, but a mere restraint or correction of the witness by the party who sought his testimony. I think therefore that the deposition itself shows that the appellant attended at the taking.

In the second place, the' magistrate certifies that “the plaintiff attended at the taking of the deposition.” This was a fact to which he was authorized by statute to certify, and when he has done so his certificate becomes *prima facie*evidence of its existence. The statute (sec. 17, chap. 137, H. S.), declares that he shall annex to the deposition a certificate containing, among other things, a statement in substance, that the opposite party, or his attorney, attended at the taking, *or*that a notice, of which the annexed is a copy, was served upon him. on a day named. This provision indicates that the legislature intended that when there was an attendance in fact, no proof of service of notice would be necessary. By the word “ attended,” as here used, the legislature undoubtedly meant something more than mere personal presence. It signifies that the party was present and participated in the examination of the witnesses. This is the sense in which it must be understood, and in which we must presume the magistrate used it. And we cannot, for the sake of excluding the deposition, presume that he misapprehended its legal signification, and used it as signifying personal presence only. 0-n this ground, also, I think the court was right in admitting it.

These positions are not overcome by the fact that it appears that the appellant, in the first instance, objected to the examination for want of notice. That objection was preliminary in its character, and if afterwards he took part in the proceeding, it was waived, and went for naught. There is nothing in the point, that the witness resided within thirty miles of the place of trial, since the deposition shows that he *676lived in tbe county of Waukesha, and not in tbe town of Burlington.

Upon tbe merits, I tbink tbe judgment must be reversed. It is well settled that in an action or defense founded upon a warranty, tbe breach must be clearly and positively proved. To this end it must be shown that tbe unsoundness existed at tbe time of tbe sale, and nothing will be suffered to rest upon mere inference or presumption. There must be a preponderance of testimony tending to show that tbe article was not then such as it was warranted to be. In this respect the evidence before us is strikingly defective. Tbe subsequent infirmity of tbe horse in tbe particulars as to which be was warranted to be sound and healthy, is clearly enough established ; but it nowhere appears that it existed at the time of the transfer. This is left entirely to conjecture.- The witnesses all speak of it as existing some months after, but the exact time is not stated. The testimony in that particular is very fluctuating and doubtful. No effort seems to have been made to show when it was first detected. No evidence was introduced for the purpose of explaining the nature and causes of the disease; whether it was organic and permanent, or temporary in its character and effect; or whether its subsequent developments were such as would demonstrate that it was of long standing and existed at the time of the sale; or whether they were such as would show that they were recently contracted, or brought on by the subsequent care and treatment of the horse. Evidence of this kind is wholly omitted, and no direct proof whatever is offered to show that the animal was previously unsound. We cannot, therefore, say that the respondent has shown a breach of the warranty.' Notwithstanding the facts proved, it may well be that the horse was sound at the time of the respondent’s purchase.

The judgment must be reversed, and the cause remanded, with direction that judgment of foreclosure and sale be entered according to the prayer of the complaint.