#### James Gordon, Sr. *v.*Isam E. Watkins, *et al.*

DECEMBER TERM, 1843.

*A*deposition -will be suppressed only for irregularity in the taking it.

If the objection relates to the competency of the ■witness, it can only be made at the final hearing.

A commission is not necessary, under the present practice of this Court, to take depositions ; they can be taken on notice.

Justices of the Peace are authorized to take depositions to be read in this Court.

The evidence of service of a notice to take depositions, must be by the return of the sheriff, or affidavit of the party serving the notice.

In this case, a motion was entered to suppress the deposition of a witness, who was also a party to the suit and a surety on the injunction bond.

No commission had been taken out of the clerk’s office to take the deposition ; but a regular notice, made out by the defendant’s counsel, appeared with the depositions, on which was the following return. “ I do certify that I delivered to John Handy, complainant’s attorney, a true copy of the above notice, on the 12th day of January, 1S44. N. J. Wa'tkins.”

The deposition was taken before a Justice of the Peace.

*Jl. H.*Handy, in support of the motion.

*W. Yerger, contra.*

By the Chancellor.

A motion to suppress a deposition cannot be sustained where the grounds of the motion relate to the competency of the witness ; because where the motion is sustained, the Court always grants leave to retake the same. Such questions can only be made at the final hearing. A motion to suppress depositions can only be founded upon irregularities in taking them.

Under the present-practice of the Court,it is not necessary to take out a commission, but it is considered sufficient, and. has been so held by this Court, merely to give notice to the opposite party of *38,the time and place, of taking the deposition, and have it sworn to before an officer authorized to administer an oath.

It has been, I think, the uniform practice in this State, for Justices of the Peace to take depositions to be read in this Court, and I am not disposed to alter it.

(The Chancellor here inquired of the late Chancellor Quitman, if this had not been the uniform practice while he presided in this Court.)

Chancellor Quitman. That was the practice.

Chancellor. Although the objections that I have reviewed are not sufficient to destroy this- deposition, it must be however, for an objection not taken, suppressed. The notice is irregular and insufficient. It is as follows. “ I do certify that I delivered to John Handy, complainant’s attorney, a true copy of the above notice, on the 12th day of January, 1844. N. J. Watkins.”

It does not appear that N. J. Watkins was a sheriff, or an officer authorized to serve a notice, and his certificate is not sworn to. One or the other of these two things must be done to constitute sufficient evidence to the commissioner, or officer taking the deposition, or to this Court, that the opposite counsel have received due notice, that the deposition will be taken.

A sheriff has power to serve notices of this kind, and his return, when made as sheriff, becomes of itself evidence.

If the notice is given by any one but an officer, the evidence of the service must be under the. oath of the party serving it.

Let the depositions be suppressed.

*Yerger.*Not being aware of any deficiency in the certificate of service, I am taken by surprise in the case, and I ask your Honor that the cause may be continued, and that I may have leave to retake the depositions.

*Handy.*The case is ready for hearing ; the depositions were defectively taken, and the Court will not on that account delay the trial of the cause.

Chancellor. I shall unquestionably give the defendant time to retake the depositions. The notice may have been regularly given, though it does not appear so to the Court from the records ; the probability is that it was regular.

*39Handy» I withdraw, then, my motion to suppress the depositions.

*Yerger.*I object to that; it is too late. The depositions are suppressed, and I ask your Honor what time you will grant me to retake them ?

Chancellor. The counsel has a right to withdraw his motion, and I shall so enter it.